Best v. Industrial Commission

OPINION JACOBSON, Chief Judge, Division 1. This review of an award of the Industrial Commission denying a petition to reopen an industrial claim raises the issue of whether the claimant is presently suffering from a mental or physical disability related to his 1962 industrial accident. In April, 1962, petitioner, Clyde A. Best, was injured in two consecutive separate accidents, one to his left index finger and the other to his back and head. This industrial claim was closed by an award in 1963, finding a 25% loss of function of the left minor arm. This award became final. Thereafter, petitioner filed petitions to reopen on January 25, 1965, July 8, 1965 and February 18, 1969, all of which were denied. On May 14, 1969, the present petition to reopen was filed and subsequently denied as being untimely. This court in the case of Best v. Industrial Commission, 14 Ariz. App. 221, 482 P.2d 470 (1971) set aside the award of the Commission holding that the request for hearing was timely. Subsequently three formal hearings were held which resulted in the present award finding that petitioner presently suffers from no new, additional or previously undiscovered condition attributable to or causally related to his 1962 industrial injuries. Petitioner by this review claims that he presently suffers from both physical and mental disabilities attributable to his 1962 injury and these disabilities are new, additional or previously undiscovered conditions. As to the physical disabilities petitioner points to findings made by Dr. Jamie Vargas that he suffers some physical disability and this disability is related “historically” to his prior industrial accident. On the other hand, Dr. John J. Kelley, a physician certified’by the American Board of Neurological Surgery and a Fellow of the American College of Surgeons testified as a result of two examinations, one in 1969 and one in 1971, that: “Q. And your opinion that there is nothing neurologically wrong with [213] Mr. Best, or was in 1969, is based on a degree of medical certainty, I assume ? “A. Yes.” As to the 1971 examination, Dr. Kelley testified: “Q. Again, as a result of your history, examination, and the test X-rays that were performed, and I take it you reviewed the finding of the radiologist, did you find anything wrong with Mr. Best from a neurological standpoint? “A. No. “Q. I take it that this finding is based on a reasonable degree of medical certainty ? “A. Yes.” Although Dr. Kelley did find some objective physical symptoms as a result of prior surgery which he assumed was performed as a result of the industrial injuries, he found they resulted in no functional impairment of the petitioner. In Dr. Kelley’s opinion, the petitioner’s present complaints were on an emotional level, rather than a physical level. There being a conflict in the medical testimony as to petitioner’s physical condition, the Commission was at liberty to choose Dr. Kelley’s testimony as worthy of belief and find no physical disability. Marquez v. Industrial Commission, 18 Ariz.App. 16, 499 P.2d 747 (1972). This then brings us to the mental condition found by most of the doctors. Dr. Phillip S. Greenbaum, a psychiatrist, found that petitioner was suffering from a hysterical neurosis, conversion type, that this mental condition was causally related to his prior industrial injury and was disabling. Dr. William B. McGrath, also a psychiatrist, examined the petitioner and found that he was suffering from a condition which he diagnosed as neurosthenic neurosis, which, while different from conversion hysteria, is also disabling. Dr. Mc-Grath was of the opinion that the industrial injuries precipitated the mental conditions but that: “I would have to [attribute his mental condition to his industrial injuries to] a slight extent eight or nine years ago. But in 1971, other than in his wishful thinking, I would not so attribute it. Second, to be precise, not the injury but the compensability of the injury is the only relationship between his strivings and the accidents.” As to his opinion that petitioner’s industrial injuries were the precipitating cause of his mental condition, Dr. McGrath testified: “I have to point out that the concept of precipitating factor has a limit in time proportionate to the type of accident and the type of injuries and the residuals, after which the other mechanism [underlying mental processes], in my opinion, take over, so that I can no longer logically or medically relate a continuity of causation.” Taking Dr. McGrath’s testimony as a whole, his opinion was that the industrial injuries triggered the petitioner’s basic mental condition, but that his underlying mental unstability has long ago taken over so that in his opinion his present condition is not causally related to his industrial injuries. We are of the opinion that those principles enumerated in cases dealing with physical injuries operating upon underlying physical conditions are applicable in the mental disorder field, that is if the industrial injury operates upon an underlying physical condition resulting in further disability, then legally a causal connection is established justifying compensation. Cammeron v. Industrial Commission, 98 Ariz. 366, 405 P.2d 802 (1965). This rule is applicable in absence of testimony that the claimant’s present condition would have come about even if the industrial injury had not occurred. See, Montgomery Ward Co. v. Industrial Commission, 14 Ariz.App. 21, 480 P.2d 358 (1971). [214] Support for the Commission’s award, if any, must come from Dr. Mc-Grath’s testimony. However, he was not asked whether in his opinion petitioner would be suffering from his present disabling mental condition in the absence of the industrial injuries. Without this illuminating testimony we are of the opinion that Dr. McGrath’s testimony cannot be relied upon to disprove a causal connection to the industrial injury. On the other hand Dr. Greenbaum’s testimony unequivocally stated such a causal connection. For this reason, in our opinion, the record does not support the award of the Commission. The award of the Commission is set aside. HAIRE, P. J., and DONOFRIO, J., concur. Note: The original opinion in this matter, filed January 8, 1974, erroneously showed Judge WILLIAM E. EU-BANK as having participated in this decision. Judge FRANCIS J. DON-OFRIO actually sat and considered the matter.