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A.J. Goulder Electric v. Industrial Commission6/4/1996
FIDEL, Judge
In the course of consolidated Industrial Commission hearings on a new injury claim and petition to reopen a closed earlier claim, Claimant and the new injury carrier reached a settlement, which the reopening carrier declined to join. At the request of the settling parties, but over the objection of the reopening carrier, the administrative law Judge ("ALJ") approved the settlement and dismissed both the Claimant's protest of termination of the new injury claim and his protest of denial of reopening of the prior injury claim. Although denial of reopening would thereby become final, the reopening carrier nonetheless objects. The reopening carrier is aggrieved, it maintains, because dismissal of the consolidated underlying proceedings frustrates its opportunity to invoke the successive injury doctrine and shift responsibility to the new injury carrier.
The question presented on review is whether, under the circumstances, the reopening carrier's consent was necessary to the other parties' settlement and to dismissal of the consolidated hearing. For the reasons that follow, we hold that it was not.
I.
In November 1987, while working as an electrician for the Petitioner Employer ("Goulder"), Claimant injured his lower back. Petitioner Carrier ("Fremont") accepted this first injury claim, and the Commission established an average monthly wage of $1,325.00, then the statutory maximum. See Ariz. Rev. Stat. Ann. ("A.R.S.") § 23-1041(E)(1). In August 1988, Claimant had a lumbar discectomy at L4-5 to treat the first injury. Although he later returned to work as an electrician, he required active medical care until September 1991. Fremont then terminated the first injury claim with a 10% permanent impairment, the Commission found no loss of earning capacity, Claimant did not object, and the "no-loss" determination became final. See A.R.S. § 23-947.
In October 1992, while working as an electrician for Respondent Employer ("Atlantic"), Claimant reinjured his lower back. Respondent Carrier ("CNA") accepted this second injury claim, and the Commission established an average monthly wage of $2,100.00, the higher statutory maximum effective by that date. See A.R.S. § 23-1041(E)(4). In January 1993, CNA terminated the second injury claim without permanent impairment, and Claimant requested a hearing.
Thereafter, in short order, Claimant petitioned to reopen the first injury claim, Fremont denied reopening, Claimant requested a hearing, and, upon Claimant's request, the ALJ consolidated the two claims.
At the initial consolidated hearing, Claimant was the single witness. Claimant testified that, despite some ongoing symptoms, he had worked regularly as an electrician after the first injury and surgery; that his symptoms had significantly worsened after the second injury; that he was limited to lighter work; and that he had experienced resulting episodic unemployment. Claimant also testified that his current treating physicians had recommended a spinal fusion, which he would undergo if coverage with either carrier were confirmed.
At the close of the first hearing, further hearings were intended. Before the next scheduled hearing, however, Claimant's counsel informed the ALJ that Claimant and CNA had settled their dispute and that Fremont, the reopening carrier, would not agree. Claimant's attorney requested a conference to determine "whether or not the Administrative Law Judge can and will allow the applicant to withdraw his request for hearing against CNA and proceed unilaterally against Fremont."
There is no written record of such a conference. The parties represent, however, that such a confe
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