This is a special action review of an Industrial Commission (Commission) award.
On review, petitioners present three issues:
On November 6, 1982, claimant Harold Vennes was working with his former wife, Audrey (now Audrey Pidcock) at the Martinez Lake Restaurant, where they managed the kitchen. After claimant asked a former employee of the restaurant to leave the premises, a scuffle took place, leaving claimant with a broken tibia and fibula in his left leg. Claimant's injury required surgery for a closed reduction.
On December 3, 1982, claimant filed a worker's report of injury and the claim was denied by petitioner Home Insurance. Claimant requested a hearing on his claim.
On September 8, 1983, a compensability hearing was held before an administrative law judge. The administrative law judge found that claimant's injury arose out of his employment and was therefore compensable. The administrative law judge awarded claimant "medical, surgical and hospital benefits, as indicated, from and
On December 11, 1984, the petitioner insurance carrier issued its "Notices of Claim Status and Permanent Disability Benefits" placing claimant on light work status as of February 15, 1983, and terminating claimant's entitlement to temporary compensation benefits and active medical treatment as of November 28, 1984. The petitioner insurance carrier found claimant had sustained a fifteen percent permanent functional impairment of his left leg and granted permanent partial disability compensation benefits accordingly.
On December 12, 1984, claimant filed objections to petitioner insurance carrier's Notices of Claim Status issued on December 11, 1984 and requested a hearing. He alleged, in addition to other allegations, that claimant's monthly wage exceeded the amount ($541.63) stated by petitioner insurance carrier and that claimant had sustained a permanent impairment of his left leg in excess of fifteen percent.
A series of hearings were held from April 24, 1985, to June 28, 1985, during which the administrative law judge heard conflicting medical testimony. Dr. Rohrer testified that as of April 15, 1985, claimant's condition was stationary. Dr. Aidem testified that claimant's condition could be improved by surgery, and if claimant was willing to go ahead with an operation, his condition was not stationary.
The administrative law judge made the following findings relevant for our review:
Petitioners filed a request for review of the decision and the administrative law judge affirmed the decision and award, stating claimant was not required to establish all the technical requirements of a reopening in order to have his benefits reinstated.
TESTIMONY OF AUDREY PIDCOCK
Petitioners argue that the administrative law judge committed reversible error by permitting Audrey Pidcock to testify. They claim that there had been no request for issuance of a subpoena to her, and by allowing her to testify, the administrative law judge precluded petitioners from effectively cross-examining Ms. Pidcock. We do not agree.
Petitioners should have been prepared to cross-examine Ms. Pidcock. The record contains evidence that Ms. Pidcock was likely to be called as a witness at the June 28, 1985 hearing. On March 29, 1985, claimant requested that the administrative law judge issue a subpoena naming Ms. Pidcock. In claimant's answer to petitioners' interrogatories 3 and 4 dated March 13, 1985, Ms. Pidcock was listed as a possible witness.
The facts in this case are similar to those in Garcia v. Industrial Commission, 20 Ariz.App. 243, 511 P.2d 687 (1973). In Garcia, the chief surgeon at the employer's hospital testified at a hearing without prior notice to claimant and without being subpoenaed. This court held that there is nothing to prevent a party from presenting witnesses who are willing to appear and testify without being subpoenaed. Id. at 246, 511 P.2d at 690.
The instant case involves a witness who was subpoenaed, thus providing a more compelling reason for allowing the testimony than in Garcia. Petitioners did not request a continuance in order to prepare for the cross-examination of Ms. Pidcock either before or after her testimony. They did not request a continuance after she had testified to procure rebuttal testimony.
Additionally, petitioners extensively cross-examined Ms. Pidcock at the June 28, 1985 hearing. We conclude that petitioners were not denied their right to cross-examine Ms. Pidcock and the administrative law judge was correct in allowing her to testify.
CLAIMANT'S BURDEN OF PROOF
Petitioners argue that claimant failed to sustain his burden of proving that his average monthly wage was $1,000.00, particularly in view of testimony that claimant actually earned only ten percent of the wages paid to him and his wife. We do not agree.
At the June 28, 1985, hearing, Ms. Pidcock testified that she understood that she and her husband were each supposed to earn $1,000.00 per month. On September 8, 1983, claimant testified that he understood he was to receive a salary of $1,000.00 per month.
Although Andrea Ybarra testified that claimant was not to be paid and was "just along as a team", both claimant and Ms. Pidcock testified that their initial wage discussions were with Jesse Ybarra and not with his wife, Andrea Ybarra. Mrs. Ybarra testified that she was in San Diego when the claimant and Ms. Pidcock were hired. She further testified that her husband brought the two for her to meet and "he said `we'll be hiring Audrey and he'll
Additionally, there was testimony that claimant worked long hours at the restaurant. Claimant testified he was working six days a week. Ms. Pidcock testified that claimant worked between 60 and 70 hours a week, and Mr. Ybarra testified that claimant and Ms. Pidcock were sharing their work.
We conclude that the record supports the administrative law judge's decision that claimant's monthly wage was $1,000.00 and find no abuse of discretion.
REINSTATEMENT OF CLAIMANT'S TEMPORARY BENEFITS
Petitioners claim that the administrative law judge committed reversible error by reinstating claimant's temporary benefits. They argue that once permanent benefits have been awarded, the claimant must file a petition to reopen the claim in order to return to the temporary benefit stage. See A.R.S. § 23-1061(H). Claimant has not filed a petition to reopen his claim.
Claimant argues that by filing his request for rehearing, he insured that the status of his claim and medical condition would not close until the administrative law judge made a final decision. Claimant is correct but it does not resolve the issue before this court.
The issue on review is whether the administrative law judge erred when he awarded permanent benefits, thereby closing the claim, and then reinstated temporary benefits in the same award after finding that claimant's condition was no longer stationary. We find no authority that supports the administrative law judge's decision and therefore conclude that the administrative law judge's closure of the claim was erroneous.
Under Arizona worker's compensation scheme, an injured claimant's entitlement to wage compensation is broken down into two categories based on the medical condition of the claimant: (1) that period of temporary disability pursuant to A.R.S. §§ 23-1044(A) and 23-1045(A); and (2) a subsequent period in which permanent disability might be involved pursuant to §§ 23-1044(B), (C) and 23-1045(B), (C). Home Insurance Co. v. Industrial Commission, 23 Ariz.App. 90, 93, 530 P.2d 1123, 1126 (1975).
Under this concept, when a claimant's condition becomes stationary, his entitlement to temporary disability benefits terminates and his entitlement, if any, to permanent disability benefits commences. Id. A claimant's condition is stationary when it has reached a "relatively stable status so that nothing further in the way of medical treatment is indicated to improve that condition." Aragon v. Industrial Commission, 14 Ariz.App. 175, 176, 481 P.2d 545, 546 (1971).
If claimant's condition can be improved by surgery as the administrative law judge found, and he is willing to undergo such surgery, his condition is not stationary and he cannot be entitled to permanent benefits. Permanent benefits are reserved for claimants whose injuries have become stationary. See Crowley Construction Co. v. Industrial Commission, 143 Ariz. 634, 694 P.2d 1248 (App. 1985); Home Insurance Co. v. Industrial Commission, 23 Ariz.App. 90, 530 P.2d 1123 (1975). An award of permanent benefits presupposes permanent disablement and is based on the degree of permanent impairment.
In the instant case, the administrative law judge found that Dr. Aidem's testimony that claimant's condition could be improved by surgery was more persuasive than the testimony of Dr. Rohrer that claimant's condition was stationary. However, the administrative law judge awarded permanent benefits for a previous period that commenced when no active treatment was recommended. This award is in error.
Additionally, the administrative law judge had no authority to award permanent benefits for an injury that once appeared to be stationary but was not stationary at the time of hearing. See Janis v. Industrial Commission, 27 Ariz.App. 263, 553 P.2d 1248
The administrative law judge's award of permanent partial disability benefits is not consistent with his finding that claimant's condition at the time of hearing was not stationary. Therefore, the award is set aside.
KLEINSCHMIDT, P.J., and BROOKS, J., concur.