Opinion
No. 2 CA-IC 2013-0005
04-07-2014
PALOMINAS ELEMENTARY SCHOOL DISTRICT, Petitioner Employer, ARIZONA SCHOOL ALLIANCE, Petitioner Insurer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SPECIAL FUND DIVISION OF THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent Party in Interest, MARTHA M. VALENZUELA, Respondent Employee.
Frank W. Frey, Tucson Counsel for Petitioners Employer and Insurer The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent The Industrial Commission of Arizona Legal Division, Phoenix By Stephen D. Ball Counsel for Respondent Party in Interest Tretschok, McNamara & Miller, P.C., Tucson By Patrick R. McNamara Counsel for Respondent Employee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Special Action - Industrial Commission
ICA Claim No. 20052940171
Insurer No. 2005006952
LuAnn Haley, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Frank W. Frey, Tucson
Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
The Industrial Commission of Arizona Legal Division, Phoenix
By Stephen D. Ball
Counsel for Respondent Party in Interest
Tretschok, McNamara & Miller, P.C., Tucson
By Patrick R. McNamara
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 In this statutory special action, petitioners Palominas Elementary School District and Arizona School Alliance (collectively "Palominas") challenge the administrative law judge's (ALJ) award of permanent partial disability benefits to respondent Martha Valenzuela and decision upon review. For the following reasons, we affirm the award.
Factual and Procedural Background
¶2 The initial briefs submitted by Palominas cited to internal appendices rather than the certified claims file that constitutes the record on review. See Ariz. R. P. Spec. Actions 10(c), (k); cf. Ariz. R. Civ. App. P. 11 (governing composition of record on appeal). Such impermissible practice is a ground for this court to find a party's argument waived. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, n.2, 263 P.3d 683, 686 n.2 (App. 2011); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (finding waiver based on failure to comply with appellate procedural rules). However, in the interest of "decid[ing] cases on their merits and not . . . punish[ing] litigants because of the inaction of their counsel," Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966), this court declined to apply the waiver rule and instead issued an order requiring Palominas to submit corrected briefs in compliance with Rules 13(a)(4) and (6), Ariz. R. Civ. App. P. Despite the rules' requirement that the parties' briefs cite directly to the record on appeal, and this court's explicit admonition that "[r]eferences to an appendix fail to inform this court whether the item referred to is, in fact, included in the record . . . and will not substitute for a citation to the record," Palominas resubmitted opening and reply briefs that continue to rely substantially on references to its own appendices. Accordingly, to enforce our own order and the express procedural rules applicable in this court, we find it necessary to disregard those factual assertions not supported with appropriate citations. See Sholes v. Fernando, 228 Ariz. 455, n.2, 268 P.3d 1112, 1114 n.2 (App. 2011).
Although Palominas's resubmitted opening brief did include a chart identifying where in the record documents in the appendices could be found "[s]o as not to unduly clutter the Statement of Facts," this was nonetheless noncompliant with this court's order directing the parties to discontinue their reliance on appendices. See Stant v. City of Maricopa Emp. Merit Bd., 681 Ariz. Adv. Rep. 12, n.1 (Ct. App. Feb. 25, 2014) ("We disapprove of this practice, even when it is motivated by a concern for this court's convenience."). In fact, this deviation from the rules deprives us of the "uniform, standard record citations" that allow us to readily review and compare sections of the parties' briefs, adding needless cross-references. Id. Furthermore, because we must verify that all documents cited in a brief are actually included within the record on review, such practice requires this court to undertake additional effort to locate documents, a burden that should be borne by the litigants. See Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993) (court will not consider matters not in the record before it); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 343, 678 P.2d 525, 528 (App. 1984) ("We are not required to assume the duties of an advocate and search voluminous records and exhibits to substantiate an appellant's claims.").
¶3 "We view the evidence in the light most favorable to sustaining the ALJ's findings." Tucson Unified Sch. Dist. v. Indus. Comm'n, 198 Ariz. 133, \ 2, 7 P.3d 142, 143 (App. 2000). In August 2005, while employed as a school bus driver, Valenzuela was involved in a near collision with another bus. Although no contact between the buses actually occurred, Valenzuela was so emotionally shaken by the events that she suffered a heart attack.
¶4 Valenzuela has since undergone four coronary bypass procedures. She also suffers from Posttraumatic Stress Disorder and depression. The ALJ found Valenzuela was able to work 17.5 hours per week as a food service worker and awarded her a lost earning capacity benefit in the amount of $678.97 per month. Palominas timely filed a petition pursuant to A.R.S. § 23-951(A) and Rule 10, Ariz. R. P. Spec. Actions, seeking review of the ALJ's award after an administrative review. This court has jurisdiction pursuant to A.R.S. § 12-120.21(A)(2).
Equal Measure Rule and Post-Injury Earnings Presumption
¶5 Palominas claims the ALJ erred in refusing to apply the equal measure rule in comparing Valenzuela's pre-injury average monthly wage and post-injury earning capacity. Specifically, Palominas first asserts that because Valenzuela's average monthly wage was based on two part-time jobs, her post-injury earning capacity should likewise be measured by dual employment income. Second, Palominas asserts that Valenzuela's post-injury earnings created a presumption of commensurate earning capacity.
¶6 As to the first issue, Palominas fails to properly present any facts regarding the computation of Valenzuela's average monthly wage or post-injury earning capacity. As to the second, Palominas fails to show that Valenzuela received post-injury income. Furthermore, as to both issues, Palominas includes its few record citations only in its statement of facts, and neglects to do so where relevant to support its arguments. Accordingly, we deem these arguments waived. See Ariz. R. Civ. App. P. 13(a)(6) (opening brief's argument "shall contain the contentions of the appellant . . . with citations to the authorities, statutes and parts of the record relied on"); Rice v. Brakel, 233 Ariz. 140, ¶ 28, 310 P.3d 16, 23 (App. 2013) (failure to cite relevant portions of record may result in waiver of argument).
Although Palominas did state that Valenzuela returned to work after the injury at a wage equal to that of her pre-injury income, the record citation provided does not support the fact asserted. We assume Palominas's reference to a transcript of the hearing "on 12/13/2012" mistakenly refers to the hearing held on December 3, 2012, as we have found no record of a hearing held on the later date.
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Loss of Earning Capacity
¶7 Palominas also claims because the ALJ adopted the opinions of Dr. Steven Gurgevich, and his testimony does not support a conclusion that Valenzuela is restricted to one part-time job, the ALJ's findings are unsupported by the evidence. Palominas does not point to anything in the record demonstrating it raised this issue during the administrative hearing or in its request for review. Accordingly, we consider this argument waived. See Teller v. Indus. Comm'n, 179 Ariz. 367, 371, 879 P.2d 375, 379 (App. 1994) ("An issue generally cannot be raised for the first time on review."). To the extent Palominas argues the evidence as a whole, rather than the specific testimony of Dr. Gurgevich, was insufficient to support the ALJ's award, an issue that "may be considered on appeal without specific reference to it in the request for review," A.J. Bayless Markets, Inc. v. Indus. Comm'n, 134 Ariz. 243, 246 n.3, 655 P.2d 363, 366 n.3 (App. 1982), it does not make this argument until its reply brief, which is too late. See Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992).
Disposition
¶8 For the foregoing reasons, the award of the ALJ is affirmed.