Opinion
No. 1 CA-IC 15-0027
02-25-2016
ERIKA WALTERS-WALTON, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, RURAL METRO CORP., Respondent Employer, ESIS/ACE USA (AZ), Respondent Carrier.
COUNSEL Law Office of Eric C. Awerkamp, Mesa By Eric C. Awerkamp -and- Toby Zimbalist, Phoenix Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix By K. Casey Kurth Counsel for Respondents Employer and Carrier
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Special Action - Industrial Commission
ICA Claim No. 20133-250106
Carrier Claim No. 7U4C0098483 Deborah A. Nye, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Law Office of Eric C. Awerkamp, Mesa
By Eric C. Awerkamp
-and-
Toby Zimbalist, Phoenix
Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By K. Casey Kurth
Counsel for Respondents Employer and Carrier
Although the respondents appeared in the administrative proceeding, they did not file a timely brief in this appeal.
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Maurice Portley joined. NORRIS, Judge:
¶1 In this special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review, petitioner Erika Walters-Walton argues that pursuant to Arizona Revised Statutes ("A.R.S.") section 23-947(B)(1) (2012) the administrative law judge ("ALJ") should have excused her untimely request for a hearing to protest a December 27, 2013 notice of claim status ("NCS") because, first, she justifiably relied on a misleading representation made by the respondent carrier, Ace USA's (AZ) ("Carrier"), and second, lacked any financial incentive to request a hearing. She also argues the December 27, 2013 NCS was void on its face. Because we find the evidence of record reasonably supports the ALJ's findings, and the December 27, 2013 NCS was not void on its face, we affirm the award. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003) (in reviewing findings and awards of the ICA, appellate court defers to ALJ's factual findings, but reviews questions of law de novo); Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002) (appellate court considers evidence in light most favorable to upholding ALJ's award).
The Arizona Legislature has amended certain of the statutes cited in this decision after the date of Walters-Walton's 2013 injury. The revisions, however, are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
FACTS AND PROCEDURAL BACKGROUND
¶2 Walters-Walton has worked for the respondent employer, Rural Metro Corporation ("Rural Metro") as a firefighter/paramedic for over 12 years. On April 23, 2008, she sustained a back sprain while lifting a patient. Rural Metro and its carrier accepted her workers' compensation claim for benefits, and she received conservative treatment from Edward J. Dohring, M.D. Her back injury became stationary with some residual numbness and tingling in her right thigh, and she returned to her regular work. The carrier closed her claim in November 2008, with a permanent impairment.
¶3 On October 25, 2013, Walters-Walton again injured her back working with a Rural Metro patient. She filed a workers' compensation claim, and, at the Carrier's request, Anthony C. Theiler, M.D., conducted an independent medical examination ("IME") of Walters-Walton. Dr. Theiler related Walters-Walton's symptoms to the 2008 injury. Relying on Dr. Theiler's IME, the Carrier issued the December 27, 2013 NCS denying Walters-Walton's 2013 claim for benefits. The December 27, 2013 NCS also stated:
11. X THIS IS BEING HANDLED AS PART OF THE 04/23/08 CLAIM 001881-028392-WC-01, ICA CLAIM NUMBER 20081-340298
¶4 Although the December 27, 2013 NCS stated that Walters-Walton's 2013 claim would be handled as part of her 2008 claim, the Carrier did not issue a notice reopening the 2008 claim. Nevertheless, the Carrier paid Walters-Walton's medical care and disability benefits under the 2008 claim.
Walters-Walton eventually petitioned to reopen the 2008 claim, and the Carrier accepted that petition in February 2014.
¶5 Walters-Walton did not protest the December 27, 2013 NCS within the requisite 90 day period ("protest period"), see generally A.R.S. § 23-947(A), and the December 27, 2013 NCS became final.
¶6 In January 2014, at the Carrier's request, Atul B. Patel, M.D., and John L. Beghin, M.D. conducted a second IME of Walters-Walton. Drs. Patel and Beghin also related Walters-Walton's back symptoms to her 2008 injury, but they recommended surgery. Walters-Walton was then referred to Dr. Dohring for additional treatment. Dr. Dohring examined Walters-Walton on March 19, 2014, and reported her October 25, 2013 injury was a "new" injury and not merely a continuation of the 2008 injury.
¶7 In May 2014, well after the December 27, 2013 NCS became final, Walters-Walton submitted various filings to the Carrier and the ICA which the parties and the ALJ treated as contesting the December 27, 2013 NCS denying her 2013 claim. At the hearing, Walters-Walton argued her untimely hearing request should be excused under A.R.S. § 23-947(B)(1) because she had justifiably relied on a representation by the Carrier that it would "cover" all medical and wage benefits arising out of the October 2013 injury. That statute, in pertinent part, provides:
B. As used in this section, "filed" means that the request for a hearing is in the possession of the commission. Failure to file with the commission within the required time by a party means that the determination by the commission, insurance carrier or self-insuring employer is final and res judicata to all parties. The industrial commission or any court shall not excuse a late filing unless any of the following applies:(Emphasis added).
1. The person to whom the notice is sent does not request a hearing because of justifiable reliance on a representation by the commission, employer or carrier. In this paragraph, "justifiable reliance" means that the person to whom the notice is sent has made reasonably diligent efforts to verify the representation, regardless of whether the representation is made pursuant to statutory or other legal authority.
¶8 Walters-Walton testified at the hearing she had found the December 27, 2013 NCS confusing, and had contacted her "case manager" because she did not know if her 2013 claim was being accepted or denied. According to Walters-Walton, her case manager explained:
[I]t was going to be too confusing for them to have two files on record for myself for a back injury, so in order to make it easier, they were
going to lump them together and make them like one claim and give a new claim number to it - - that everything was still going to be covered as far as this October of '13 claim, but it would be attached onto the '08, so it would be basically one essential file on myself.
¶9 The ALJ entered an award dismissing Walters-Walton's hearing request as untimely. The ALJ found the December 27, 2013 NCS had accepted her 2013 claim for benefits under the "old 2008 claim number, which wasn't 'new' per se, but was new to the [October 2013] claim." And, as discussed in more detail below, the ALJ further found Walters-Walton had not relied on any representation made by the Carrier "that was not, in fact, true and accurate, or that misled [her] in any way to delay her protest to the [December 27, 2013 NCS]." Walters-Walton timely requested administrative review, but the ALJ summarily affirmed the award.
DISCUSSION
¶10 Walters-Walton argues she justifiably relied on the case manager's assurance that "everything" would be covered under a new claim number combining the 2008 and 2013 injuries in failing to timely protest the December 27, 2013 NCS, and only after the protest period expired did she discover that she was not being paid "everything." More specifically, Walters-Walton argues that because temporary and permanent disability benefits are based on her average monthly wage at the time of her injury, the Carrier based her disability benefits on her 2008 average monthly wage instead of using her average monthly wage as of the date of the 2013 injury, which, she asserts, "followed the 'usual' pattern of increasing over the years."
¶11 Putting aside Walters-Walton's failure to present any evidence at the hearing comparing her 2008 and 2013 average monthly wages, she testified at the hearing, however, that she was being paid temporary disability benefits based on her 2013 wages and not her 2008 wages:
The record before us reflects that Walters-Walton's condition is not medically stationary, so consideration of permanent disability benefits is premature. Procedurally, the right to permanent disability benefits does not arise until after the claimant's medical condition becomes stationary. See A.R.S. § 23-1047(A) (2015). This typically occurs when the claimant's medical condition is not subject to further improvement, and the claimant is discharged from active medical treatment. See Janis v. Indus. Comm'n, 27 Ariz. App. 263, 265, 553 P.2d 1248, 1250 (1976). "When a physician discharges a claimant from treatment, the physician" is required to "determine whether the claimant has sustained any impairment of function resulting from the industrial injury." See Ariz. Admin. Code ("A.A.C.") R20-5-113(B). If an impairment is awarded, it allows the claimant to proceed to a loss of earning capacity determination. See Cassey v. Indus. Comm'n, 152 Ariz. 280, 283, 731 P.2d 645, 648 (App. 1987) (loss of earning capacity is a bifurcated procedure requiring claimant first to establish impairment, and second, that the impairment diminished claimant's earning capacity). In this regard, because Walters-Walton did not timely protest the December 27, 2013 NCS, the Carrier's decision to combine her 2013 injury with the 2008 claim is now final. Nevertheless, the ALJ's decision did not address how Walters-Walton's earning capacity should be determined if she establishes impairment. If Walters-Walton establishes impairment, she will then be entitled to argue that the Carrier's statement that "everything" would be covered and its payment of temporary disability benefits based on her 2013 wages should be considered in determining the amount of compensation she may be entitled to receive.
Q. [By the ALJ] Let's assume [the Carrier] had given it a new claim number. Do you think you would have gotten any different benefits if [it] had given it a new claim number?
A. [Walters-Walton] No, ma'am. I don't - - I don't believe so.
Q. Did you - - Did you get your 100 percent pay for that year following the October 25th, 2013 incident?
A. Yes, ma'am, I did.
* * * *
Q. And were the 100 percent benefits that you then got the pay that you were making in 2013 and '14?
* * * *
Q. - - and I'm asking you, yes, when it's all balanced out, were you being paid essentially what you had been earning in October of - -
A. Yes, ma'am.
Q. - - of 2013?
A. Yes, ma'am. Sorry.
¶12 Walters-Walton also testified that under Rural Metro's collective bargaining agreement with her union, in addition to temporary disability benefits made by the Carrier—which by statute are 66 2/3% of an employee's average monthly wage, see A.R.S. § 23-1044(A) (2015)—Rural Metro provided a salary matching benefit for one year following the October 25, 2013 injury so that she received 100% of her date of injury salary. When the one year expired—in October 2014—the matching benefit terminated, and, at that point, as Walters-Walton acknowledged at the hearing, she "lost 33 and a third percent" of her pay.
¶13 Given this evidence, as the ALJ found, the Carrier did not make any misleading representation to Walters-Walton that caused her to delay filing a hearing request.
¶14 Walters-Walton next argues she did not have a financial incentive to protest the December 27, 2013 NCS because she was receiving Rural Metro's salary matching benefit, and the Carrier had assured her that "everything" would be covered, and thus the ALJ should have excused her untimely request for a hearing. In making this argument she relies on Circle K Corp. v. Indus. Comm'n, 179 Ariz. 422, 880 P.2d 642 (App. 1993), and Red Bluff Mines, Inc. v. Indus. Comm'n, 144 Ariz. 199, 696 P.2d 1348 (App. 1984). In both cases this court recognized that lack of financial incentive could affect the application of claim or issue preclusion under the workers' compensation statutes.
An ICA award has res judicata effect by application of principles of claim and issue preclusion. Circle K Corp., 179 Ariz. at 427, 880 P.2d at 647. Claim preclusion bars re-litigation of a claim actually decided or that could have been decided after a timely protest. Western Cable v. Indus. Comm'n, 144 Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985). Issue preclusion bars re-litigation of an issue of fact that is actually litigated and is essential to a final judgment. Red Bluff Mines, 144 Ariz. at 204-05, 696 P.2d at 1353-54. --------
¶15 Unlike Circle K and Red Bluff, the direct issue here is not claim or issue preclusion, but whether Walters-Walton was justifiably excused in filing an untimely hearing request. The import of her argument is that a workers' compensation claimant may make a late filing despite the finality provisions of A.R.S. § 23-947(B) as long as he or she is satisfied with the benefits provided by the carrier. In our view, the statute cannot be stretched to fit that type of situation.
¶16 Finally, Walters-Walton argues the December 27, 2013 NCS was void on its face because it was ambiguous, see Best v. Indus. Comm'n, 14 Ariz. App. 221, 224, 482 P.2d 470, 473 (1971), and deprived her of the right to decide whether to petition to reopen the 2008 claim or petition to assert a new injury claim. O'Donnell v. Indus. Comm'n, 125 Ariz. 358, 362, 609 P.2d 1058, 1062 (App. 1979) (in the context of successive injury doctrine, claimant has the right to decide whether to pursue reopening of a claim or a new injury claim).
¶17 As discussed, the December 27, 2013 NCS denied Walters-Walton's October 25, 2013 claim for benefits, but also stated benefits would be provided under her 2008 injury claim. While potentially confusing on its face, Walters-Walton followed up with her case manager who assured her that "everything" would be covered, which, as discussed, happened. Although the December 27, 2013 NCS could have been clearer, it was not void.
¶18 Further, the December 27, 2013 NCS did not deprive Walters-Walton of the right to decide whether to pursue a reopening of her 2008 claim or a new injury claim. First, in February 2014, before the protest period expired, Walters-Walton petitioned to reopen the 2008 claim, and the Carrier accepted her petition to reopen that same month. See supra note 2. Second, as noted, Dr. Dohring examined Walters-Walton on March 19, 2014, and reported she had sustained a new injury. As of the date of his report, the protest period had not yet expired, and Walters-Walton could still have requested a hearing to challenge the December 27, 2013 NCS.
CONCLUSION
¶19 For the foregoing reasons, we affirm the award.