Smith v. Industrial Commission

OPINION

NELSON, Presiding Judge.

Our decision in Adams v. The Industrial Commission of Arizona (1 CA-IC 1296), 26 Ariz.App. 289, 547 P.2d 1089 (1976), filed this day, relating to Rule 13d, Rules of Procedure for Workmen’s Compensation Hearings Before the Industrial Commission of Arizona (Nov. 1, 1973), requires the award herein to be set aside.

Henry D. Smith, Sr., petitioner herein (Smith), injured his back on May 19, 1972 while working for the City of Tucson, respondent employer. The State Compensation Fund, respondent carrier (SCF), accepted the claim for workmen’s compensation benefits. Benefits were paid through April 8, 1974 when they were terminated as a result of a notice of claim status issued May 3, 1974 terminating compensation and medical benefits because Smith had been discharged without permanent disability. A hearing was requested and subsequently held as a result of the May 3, 1974 notice of claim status. On November 29, 1974 the hearing officer issued a Decision and Award for Temporary Disability. After a request for review resulted in the hearing officer affirming his previous decision, the matter was brought here on cer-tiorari.

Although a number of doctors treated Smith in the interim between his injury and the hearing on October 17, 1974, only Farouk Antoine Habra, M.D., an orthopedic surgeon, testified at the hearing. Dr. Habra had examined Smith twice, once on October 3, 1973 and again on January 31, 1974 in consultation with two other doctors, Larry I. Mann, M.D., and Melvin D. Roberts, M.D. As a result of the latter consultation, a report was filed, signed by all three doctors, and was part of the record before the hearing officer.

The final few sentences of that report are enlightening:

“This patient has a so-called chronic mechanical back and a congenital defect of spina bifida occulta at L5 by X-ray becoming symptomatic as a direct result of the May 19, 1972 injury. We do not expect any permanent disability; however, under the circumstances with persistent symptomatology, he should not be expected to perform any heavy work. This would, more specifically, preclude bending, lifting, stooping, or heavy machinery handling. It is our recommendation to have the patient rehabilitated or retrained into more sedentary type work.”

Dr. Habra’s testimony regarding the report clarifies the apparent ambiguity in the consultation report and points out the dilemma the doctors find themselves in regarding the AMA Guides in cases such as this one:

“Q. Now you said, you also say [in the report] you don’t expect any permanent disability, but you then go on and recommend restrictions; can you tell us what those restrictions were briefly and then I have another question to ask you after you complete that.
“A. Yes. Well, we felt that the — the injury, itself, caused the pain to appear, to surface up, to start having back pain. Now theoretically an injury like this should get better or go back to normal in six to eight weeks, ten weeks, twelve weeks. He obviously did not and a long time passed before I even saw him for the first time. He had all the treatments that one would treat a problem like his *299very adequately before I even saw him. We felt, however, that he could not really under the circumstances at the time he was seen return to a heavy duty type work.
“Q. Because of the pain that it would produce ?
“A. Because of the pain that he was complaining about. No matter what he did he complained of pain. And we, felt that he was genuine; that he was really very honest in his pain. And that’s why we felt we should just come up with a statement that would kind of cover it all. And we did not feel he had a permanent disability as far as rating is concerned from that particular injury, but then on the other hand we felt that he really could not do the heavy work he had elected to do as a career without hurting .. .
* * * * * *
“Q. Doctor, when you talk about not being able to rate this as a disability, what you are talking about, I assume, is not being able to rate it within the criteria of the AMA Guides; is that correct? The American Medical Association?
“A. Right. Exactly.
“Q. If you were to ignore the AMA guide based upon your view of Mr. Smith and the fact that he does have tingling pain would you indicate that he would have a disability based on that continuing pain?
“A. Well, yes, definitely. If he — if we could rate someone only on pain, he should have it. And this is, I think, indirectly what we are saying. We recommended rehabilitation, retraining in another job that hopefully would pay him as much as he was making or something similar to what he was making while a heavy laborer.
“Q. Let me reiterate just a second. He had pre-existing conditions, the mechanical back and the spina bifida and the accident produced pain. This pain now is a limiting factor and if you could rate pain along [sic] without objective findings as required by the AMA guides, you would rate him as a disability; is that a fair statement?
“A. Yes.” (Emphasis supplied)

The doctor went on to testify that there were some objective findings of muscle spasm on each occasion when Smith was examined, but apparently these were insufficient findings to enable a disability rating within the AMA Guides.

While there is some dispute among the lawyers as to whether the AMA Guides allow a rating of pain generally, we do not perceive this to be in issue here. Doctor Habra’s testimony, coupled with the report authored by himself and two other prominent physicians, makes it clear that in cases such as this one, the AMA Guides do not provide for a disability rating for pain. Counsel for the carrier not only agreed with the doctors in his brief, but set forth therein, as an appendix, a portion of the AMA Guides which makes it clear that the percentage rating for pain is allowable only in cases where it is demonstrable in connection with peripheral spinal nerves and is objectively verifiable as set out therein. After setting forth three criteria in the introduction to Chapter 11, AMA Guides, The Peripheral Spinal Nerves, this language of the American Medical Association is clear:

“Subjective complaints of pain which cannot be substantiated along these lines are not considered within the scope of this guide.”

Interestingly, it was the group of doctors involved in this case who were trying very hard, as a result of their examinations and consultation, to give effect to the lav/ of Arizona as announced by this Court and the Supreme Court of Arizona. Their efforts were negated by the hearing officer’s interpretation of Rule 13d, supra, making the AMA Guides exclusively controlling in these cases. Adams v. The Industrial Commission of Arizona, supra.

*300Objective medical findings are not required to support a disability based upon pain. Subjective symptoms of pain can be severe enough to be disabling and thus compensable. Matthews v. The Industrial Commission of Arizona, 20 Ariz.App. 350, 512 P.2d 1237 (1973); Ward v. The Industrial Commission of Arizona, 20 Ariz. App. 237, 511 P.2d 681 (1973); Mahan v. The Industrial Commission of Arizona, 14 Ariz.App. 535, 484 P.2d 1064 (1971); Newman v. The Industrial Commission of Arizona, 14 Ariz.App. 154, 481 P.2d 524 (1971). Since we have at least some minimal objective findings, although not enough to bring the AMA Guides into play, we do not even have the rare case of valid subjective symptoms in the complete absence of objective medical findings. Newman v. The Industrial Commission of Arizona, supra. Disabling pain is compensable. Midland-Ross Corporation v. The Industrial Commission of Arizona, 107 Ariz. 311, 486 P.2d 793 (1971); Greer v. The Industrial Commission of Arizona, 16 Ariz.App. 594, 494 P.2d 1339 (1972).

Without the proscription of the AMA Guides, the doctors all agreed Smith had disabling pain in his back. Thus the interpretation of Rule 13d, supra, here, as in Adams, supra, requires this award be set aside. Since this is an unscheduled injury, A.R.S. § 23-1044C, it remains to be determined what loss of earning capacity, if any, Smith suffered as a result of this injury.

The award is set aside.

HENRY S. STEVENS, Judge, Retired, concurs.

NOTE: The Honorable HENRY S. STEVENS, Judge, retired, was called to participate in the disposition of this matter.