Opinion
Review Denied Oct. 28, 2003.
Redesignated as Memorandum Opinion Jan. 13, 2004.
Editorial Note:
This opinion was published in the advanced sheet but was withdrawn in the bound volumes as it was depublished later.
Page 1259
Jones, Skelton & Hochuli, P.L.C., By K. Casey Kurth and Andrea L. Kravets, Phoenix, for Petitioners Employer and Insurer.
The Industrial Commission of Arizona, By Laura L. McGrory, Phoenix, for Respondent.
Tretschok & McNamara, P.C., By Dale D. Tretschok, Tucson, for Respondent Employee.
OPINION
FLOREZ, J.
¶ 1 In this statutory special action, we consider the legal question whether a claimant whose first award did not include a loss of earning capacity (LEC) is precluded from establishing an LEC related to that first injury in a subsequent injury claim so as to convert the subsequent scheduled injury to an unscheduled one. The employer here, Underground Technologies, Inc., (UGTI) and its carrier, Employers Insurance of Wausau, challenge an award in which the administrative law judge (ALJ) converted employee Peter Petroni's second industrial injury from a scheduled injury to an unscheduled injury. Scheduled injuries are those listed in A.R.S. § 23-1044(B) and result in a fixed amount of compensation pursuant to the schedule for each listed injury. Unscheduled injuries are other injuries not listed in § 23-1044(B). Vargas v. Industrial Comm'n, 187 Ariz. 66, 926 P.2d 533 (App.1996). Compensation for unscheduled injuries is calculated at a percentage of the employee's average monthly wage as set by the Commission and endures as long as the disability continues. See § 23-1044(C). We affirm the award.
¶ 2 Petroni suffered his first industrial injury in 1997 when, as a trainee for E-Z Messenger, he injured his back. He filed a claim for workers' compensation benefits, which his employer accepted. The claim was closed with a finding that Petroni had suffered an unscheduled industrial injury resulting in a five percent general physical functional disability and included a further finding that he had suffered no LEC and that he had no medical restrictions that would prevent him from returning to the same or similar work. Petroni did not contest the finding that he had no LEC and has never sought to reopen that award, as permitted by A.R.S. § 23-1061(H), to establish an LEC related to that injury.
¶ 3 In 2000, Petroni suffered a second industrial injury, injuring his knee while working for UGTI as an underground utility locator trainee. Petroni filed a claim for workers' compensation benefits, which UGTI accepted. After UGTI concluded that Petroni's condition was stationary, it moved to close the claim. Based on the parties' stipulation, the ALJ found Petroni had suffered a scheduled injury with a ten percent permanent partial disability. Petroni then requested a hearing to contest the determination that his injury was scheduled, arguing that his injury should be unscheduled because he had suffered a previous unscheduled industrial injury to his back in 1997 when he was a trainee for E-Z Messenger.
¶ 4 Following a hearing on Petroni's protest to closure, the ALJ issued an award, relying upon Adams Insulation Co. v. Industrial Commission, 163 Ariz. 555, 789 P.2d 1056 (1990), and medical and vocational evidence to find that Petroni had suffered an LEC from his first industrial injury at the time of the closure of the second injury. The ALJ then concluded that such a loss converted Petroni's second industrial injury from a scheduled injury to an unscheduled injury.
¶ 5 UGTI contends that the ALJ erred as a matter of law in converting Petroni's injury to unscheduled because the award in his first industrial injury claim was that he had no LEC and that that determination precluded his attempt to establish an LEC from that first injury in the hearing on his subsequent industrial injury. We review questions of law de novo. Benafield v. Industrial Comm'n, 193 Ariz. 531, 975 P.2d 121 (App.1998).
¢ ¶ 6 The law is well established that a claimant may convert an otherwise scheduled subsequent injury to an unscheduled one by establishing an actual LEC related to the first unscheduled industrial injury at the time of the subsequent industrial injury. Elmer Shelton Concrete Contractor, Inc. v. Industrial Comm'n, 123 Ariz. 200, 598 P.2d 1019 (App.1979). To do so, "[t]he claimant must ... prove at the time of the second injury a loss of earning capacity as a result of the prior disability." Fremont Indemnity v. Industrial Comm'n, 144 Ariz. 339, 342, 697 P.2d 1089, 1092 (1985).
¶ 7 Workers' compensation law recognizes "that successive permanent injuries may produce a total disability greater than the sum of its parts." PFS v. Industrial Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997). The case law in this area acknowledges this fact in cases involving workers who have a nonindustrially caused condition or injury which, when coupled with a later industrial injury that would otherwise be scheduled, may result in the industrial injury being unscheduled. For example, in Adams, the case upon which the ALJ relied here, the claimant had low intelligence which, when combined with his otherwise scheduled injury, resulted in an unscheduled injury award. See also Alva v. Industrial Comm'n, 156 Ariz. 85, 750 P.2d 28 (1988) (childhood accident resulting in loss of two phalanges of left little finger sufficient to create rebuttable presumption of LEC affecting subsequent industrial injury to right wrist); Pullins v. Industrial Comm'n, 132 Ariz. 292, 645 P.2d 807 (1982) (childhood nonindustrial injury to claimant's eye resulting in blindness of sufficient magnitude to unschedule subsequent industrial accident to other eye, which resulted in seventy-five percent functional impairment); Borsh v. Industrial Comm'n, 127 Ariz. 303, 620 P.2d 218 (1980) (nonindustrially related degenerative joint disease developed during military service followed by scheduled industrial injury to knee sufficient to unschedule the knee injury); Alsbrooks v. Industrial Comm'n, 118 Ariz. 480, 578 P.2d 159 (1978) (first injury military related and used to unschedule subsequent industrial injury); Vargas v. Industrial Comm'n, 187 Ariz. 66, 926 P.2d 533 (App.1996) (original nonindustrial football injury to right knee; later industrial injury to right knee created rebuttable presumption of LEC); Yanez v. Industrial Comm'n, 21 Ariz.App. 367, 519 P.2d 220 (1974) (prior military injury to abdomen enjoyed no presumption of LEC, leaving claimant with burden to establish LEC from prior injury to unschedule subsequent industrial injury to knee); Camacho v. Industrial Comm'n, 20 Ariz.App. 225, 511 P.2d 669 (1973) (rebuttable presumption that prior injury resulted in LEC at time of subsequent scheduled industrial injury where claimant had initial nonindustrial injury, which would have been scheduled if industrial; presumption rebutted so industrial injury remained scheduled); Sutton v. Industrial Comm'n, 16 Ariz.App. 334, 493 P.2d 501 (1972) (nonindustrial military loss of hearing can unschedule subsequent industrial injury to arm, an otherwise scheduled injury).
¶ 8 The worker can also convert a subsequent scheduled injury into an unscheduled injury when both injuries are industrially related, only if he or she can establish an actual LEC from the first unscheduled industrial injury at the time of the subsequent injury. We emphasize that the relevant LEC from the first industrial injury is "as it existed at the time of the subsequent injury," not at the time the prior award was made. A.R.S. § 23-1044(E). The problem arises when a worker, such as Petroni, has received an award with no LEC as to the first injury but who, following a subsequent industrial injury, has a cumulative LEC greater than that resulting from the second industrial injury alone. Can the employee present vocational and medical evidence in proceedings related to the second scheduled industrial injury on the issue of the LEC resulting from the initial unscheduled industrial injury and the effect of both of the injuries together on the cumulative resulting LEC if the employee has not reopened the award as to the first injury?
¶ 9 Relying on Modern Industries, Inc. v. Industrial Commission, 125 Ariz. 283, 609 P.2d 98 (App.1980), UGTI contends that because Petroni's first claim was closed with an award of no LEC, he was not only precluded from establishing an LEC as to that first claim at the hearing on his second claim because he had failed to reopen the first claim to establish an LEC, but that the Commission lacked jurisdiction to consider the issue. In Modern Industries, the claimant suffered an unscheduled industrial injury to his back, resulting in an initial award finding the claimant had sustained an LEC. After fifteen years, the carrier obtained a rearrangement of the initial award to establish that the claimant no longer had an LEC. Following a second industrial accident, which resulted in a scheduled injury, the claimant sought to have the scheduled injury converted to an unscheduled injury. He did not file a petition to reopen the first award. The court there found that the hearing officer had "properly refused to consider evidence of loss of earning capacity attributable to the [prior industrial injury], in absence of the jurisdiction of the Commission being properly invoked to consider the propriety of its previous awards by a filing of a petition to reopen in that first injury claim." Id. at 286-87, 609 P.2d at 101-02.
¶ 10 To the extent Modern Industries suggests that an ALJ lacks subject matter jurisdiction to hear such a claim absent the filing of a petition to reopen, we disagree with it. The Industrial Commission derives its powers from article XVIII, § 8 of the Arizona Constitution, and A.R.S. § 23-101. The Commission has "exclusive jurisdiction to determine all issues of law and fact relating to a claimant's entitlement to compensation benefits under the Workmen's Compensation Act." Rios v. Industrial Comm'n, 120 Ariz. 374, 376, 586 P.2d 219, 221 (App.1978). The filing of the subsequent claim gave the Commission subject matter jurisdiction to consider matters related to that subsequent claim, including any LEC related to the initial injury at the time of the subsequent injury and the combined effect of the prior industrial injury and the subsequent injury. We therefore turn to UGTI's related, but separate, claim that Petroni's first award "bec[a]me final and ... unaltered [and has] ... continuing preclusive effect" on his LEC related to the first injury.
Although UGTI did not raise the issue of preclusion based upon Modern Industries v. Industrial Commission, 125 Ariz. 283, 609 P.2d 98 (App.1980), until its request for review before the administrative law judge (ALJ), the parties at oral argument in this court agreed that the matter had been preserved for this court's review by UGTI's inferential references to the doctrine of preclusion.
¶ 11 The question we must consider, then, is whether the doctrine of claim preclusion (res judicata) or issue preclusion (collateral estoppel) prevented the ALJ from considering Petroni's LEC resulting from the combination of the first industrial injury with the second industrial injury at a hearing on a new claim filed with respect to the second claim. Claim preclusion bars relitigation of the same claim if the claim was actually litigated or could have been litigated in the prior matter. Red Bluff Mines, Inc. v. Industrial Comm'n, 144 Ariz. 199, 696 P.2d 1348 (App.1984). It also requires involvement of the same parties or their privies. PFS. Here, the parties in the second claim are different from those in the first. On this basis, Modern Industries is distinguishable. It involved the same insurer in both claims and, we assume, the same employer, given that Division One of this court discussed the matter in terms of res judicata. The parties in each of Petroni's claims are not the same so claim preclusion (res judicata) does not apply.
¶ 12 Moreover, Petroni did not seek to relitigate the issue of his LEC at the time of the initial award. That award remains intact as to the LEC at that time and is res judicata between the parties to it only. See Guy F. Atkinson Co. v. Kinsey, 61 Ariz. 127, 129, 144 P.2d 547, 548 (1944) ("judgment upon the facts then existing is res adjudicata "). Petroni's LEC at the time of the first award, however, is not the relevant LEC the ALJ was asked to assess here. Rather, the ALJ was asked to determine Petroni's LEC at the time of the subsequent injury, albeit as a result of a combination of the injuries from both industrial accidents. § 23-1044(E). Thus, res judicata did not prohibit the ALJ from considering this new claim.
¶ 13 Nor did the doctrine of collateral estoppel preclude the ALJ from considering Petroni's LEC at the time of the subsequent injury. "Issue preclusion bars relitigation of an issue if the issue was previously litigated, determined, and necessary to final judgment." Lovitch v. Industrial Comm'n, 202 Ariz. 102, ¶ 24, 41 P.3d 640, ¶ 24 (App.2002); Brown v. Industrial Comm'n, 199 Ariz. 521, 19 P.3d 1237 (App.2001). Unlike claim preclusion, issue preclusion does not require the same parties. And, it may be asserted defensively by one not a party to the prior judgment, PFS, as UGTI seeks to do here. Clearly, Petroni's LEC at the time of the subsequent injury was not before the Commission at the time of the prior award; thus, Petroni cannot be precluded from establishing he had an LEC that resulted from the combination of the first and subsequent injuries.
¶ 14 UGTI also relies on Elmer Shelton, which predates Modern Industries, for the proposition that a claimant may not seek a determination of LEC resulting from a subsequent injury without reopening the prior award that resulted in no LEC. The claimant in Elmer Shelton injured his back, an unscheduled injury, resulting in a ten percent general physical functional disability, but no LEC. The claimant never sought to reopen the earlier claim and it became " res judicata that the employee incurred no loss of earning capacity as a result of the first injury." 123 Ariz. at 201, 598 P.2d at 1020. He subsequently injured his left leg, which the insurer asserted resulted in the claimant's sustaining a scheduled injury and a thirty-five percent permanent partial impairment. The employee requested a hearing, after which the ALJ determined "as a matter of law that even though the employee had no loss of earning capacity as a result of the [initial] unscheduled injury, the residual 10% disability resulting from that injury was, without more, sufficient to convert the subsequent scheduled injury into an unscheduled injury compensable under A.R.S. § 23-1044(E)." Id. Division One of the court of appeals set aside the award, concluding that a prior disability without an LEC was insufficient to convert a subsequent scheduled injury to an unscheduled one.
¶ 15 Although we agree that Elmer Shelton is factually similar to the case before us, the issues are not. In Elmer Shelton, the ALJ gave conclusive effect that the first unaltered award, with its finding of a ten percent general physical functional disability but no LEC, was sufficient to unschedule the subsequent scheduled injury. The appeals court focused only on the propriety of the ALJ's conclusion that the finding of a disability equated to an LEC from that injury sufficient to convert the subsequent injury to an unscheduled one as a matter of law. Here, the ALJ considered evidence of Petroni's LEC from the first injury at the time of the subsequent injury, not at the time the first award was entered or any time thereafter until the second injury occurred. Petroni did not rely on the first award that he had suffered a five percent general physical functional disability to show as a matter of law he suffered an LEC from the first injury. He presented sufficient vocational and medical evidence to show the effect of his disability related to his first industrial injury at the time of and in combination with his disability related to his subsequent injury.
UGTI does not contest in this court the sufficiency of the evidence to establish Petroni's LEC as to the first injury at the time of the subsequent injury. Thus, we do not consider this issue.
¶ 16 The ALJ's reliance on Adams is misplaced. That claimant suffered a scheduled industrial injury to his knee. Because the claimant had an innate low intelligence, however, the supreme court affirmed the ALJ's determination that this condition, though nonindustrial, was sufficient to support unscheduling the knee injury because in combination the "total earning capacity disability [was] greater than the sum of the individual disabilities." Id. at 558, 789 P.2d at 1059. Adams is factually distinguishable from Petroni's circumstances and of little persuasive authority.
¶ 17 Worker's "compensation law is construed liberally so as to effectuate its remedial purpose." Fremont Indemnity, 144 Ariz. at 345, 697 P.2d at 1095. An award that reaches the right result, such as the one here does, although for the wrong reason will generally be affirmed. ITT Courier v. Industrial Comm'n, 141 Ariz. 357, 687 P.2d 365 (App.1984); Salt River Project v. Industrial Comm'n, 126 Ariz. 196, 613 P.2d 860 (App.1980).
¶ 18 Award affirmed.
BRAMMER, Jr., P.J. and HOWARD, J., concurring.