New injury need not include organic change under successive injury doctrine

Southwest Desert Images v. Industrial Commission, Court of Appeals, Division Two, Published Opinion, Filed 10/28/14.

In 2008, Slaven sustained an industrial injury to his low back. At that time, an MRI revealed a disc protrusion on the left side. However, at the independent medical examination (IME), the doctor noted that Slaven did not have any left-sided symptoms and, therefore, the left-sided disc protrusion was not related to the industrial injury. The claim closed per the IME in 2010 with a 2 percent permanent impairment.

Slaven injured his back again in 2012 while working for the same employer, who now had a new insurance carrier. Following the 2012 injury, however, he had pain which radiated down his left side and left leg. Slaven filed a petition to reopen his 2008 claim and, at the same time, also filed a new claim. Both the petition to reopen and the new claim were denied and, after litigation, the ALJ issued a decision denying the 2008 petition to reopen but found that the 2012 claim was compensable. The carrier in the 2012 injury appealed, arguing that the MRI was unchanged between the two injuries and there cannot be a new injury without evidence of an “organic” change.

At issue on appeal was application of the successive injury doctrine. The successive injury doctrine dictates that, if an injured worker files a petition to reopen and also files a claim for a new injury, and meets the criteria for both, then the carrier that is last in time is responsible for workers’ compensation benefits.

The Court of Appeals found that a new injury can occur even without an organic change. They noted that the ALJ resolved the conflicting testimony in favor of the doctor who believed the later industrial incident was a new injury, and it refused to disturb that finding. Accordingly, the Court affirmed the ALJ’s award finding that Slaven sustained a new compensable injury in 2012.

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