Church of Jesus Christ of Latter Day Saints v. Industrial Com'n of Arizona

• Decision Date: 20 February 1986
• Docket Number: No. 1,CA-IC,1
• Citation: Church of Jesus Christ of Latter Day Saints v. Industrial Com'n of Arizona, 724 P.2d 581, 150 Ariz. 495 (Ariz. App. 1986)
• Parties: CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, Petitioner Employer, Church of Jesus Christ of Latter Day Saints, c/o Risk Management Division, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Gilbert Estrada, Respondent Employee. 3334.
• Court: Arizona Court of Appeals

Page 581

724 P.2d 581

150 Ariz. 495

CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, Petitioner Employer Church of Jesus Christ of Latter Day Saints, c/o Risk Management Division, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Gilbert Estrada, Respondent Employee.

No. 1 CA-IC 3334.

Court of Appeals of Arizona Division 1, Department D.

Feb. 20, 1986.

Law Office of John F. Day, P.C. by John F. Day, Phoenix, for petitioner employer and petitioner carrier.

Dennis P. Kavanaugh, Chief Counsel Industrial Com'n of Arizona, Phoenix, for respondent.

Schiffman, Hozier & Kurth, P.C. by Dennis R. Kurth and Chris T. Johnson, P.C., Phoenix, for respondent employee.

JACOBSON, Judge.

The issue raised in this review of an award of the Industrial Commission is whether a carrier may "correct" a Notice of Claim Status, finding a permanent disability, more than 90 days after the Notice is issued.

The facts are basically undisputed. The claimant, Gilbert Estrada, was injured while employed by the Church of Jesus Christ of Latter-Day Saints ¹ at the L.D.S. Church Farm. On April 14, 1983, the carrier issued a Notice of Claim Status closing the claim as of March 8, 1983, with an unscheduled permanent impairment. No medical report supporting the closing was filed with the Commission.

On April 17, 1983, the Commission notified the carrier of the lack of a medical report and requested submission of form 107, which triggers a determination of benefits. In early May, 1983, the carrier responded to this inquiry by sending the Commission a medical report authored by Dr. John Whisler. This report opined that "patient is just about the same and is at the stage now where decisions will have to be made. I do not feel that he is physically capable of returning to the rigors of his former work, namely that of heavy equipment operator...."

Upon receiving this report, a Commission employee informed the carrier that the medical report might not support a finding of permanent impairment and suggested either a further medical report or a rescinding Notice of Claim Status. Consequently, the carrier scheduled an independent medical examination of the claimant, by Dr. Gerald Moczynski for July 21, 1983. This examination did not take place, however, until sometime in October, 1983, at which time Dr. Moczynski determined that the claimant could be discharged with no permanent physical impairment attributable to the industrial accident.

On February 9, 1984, the carrier issued an "amended" Notice of Claim Status, which stated that claimant was discharged as of March 8, 1983, with no permanent disability. The Notice stated, "Amend April 14, 1983 Notice as we have been advised by the Industrial Commission that the notice was improper and should be rescinded."

This amended Notice was timely protested and following hearings, the Administrative Law Judge entered an award finding that the April 14, 1983 Notice of Claim Status, not having been protested within 90 days of its issuance, became res judicata as to claimant's physical condition, and that the Notice of February 6, 1984, was null and void.

The carrier has sought review contending the award is improper because:

(1) The April 14, 1983 Notice of Claim Status was void pursuant to Roseberry v. Industrial Commission, 113 Ariz. 66, 546 P.2d 802 (1976);

(2) The February 6, 1984 Notice of Claim Status is entitled to be given effect, because it was issued pursuant to the Commission's direction, and

(3) A procedure must be judicially established to allow a carrier to correct an inaccurate Notice of Claim Status.

Turning first to the Roseberry issue, the carrier contends that since its April 14, 1983 Notice of Claim Status was not supported by Dr. Whisler's report, the Notice is void. In Roseberry, the Arizona Supreme Court held that a Notice of Claim Status which was unsupported by the medical report on which it was based, was void on its face and therefore not entitled to res judicata effect. As subsequent cases have made clear, the voidness doctrine of Roseberry is applicable only where the Notice of Claim Status is directly contrary to the medical report upon which it is based. See Calixto v. Industrial Commission, 126 Ariz. 400, 616 P.2d 75 (App.1980); NCR Corp. v. Industrial Commission, 142 Ariz. 167, 688 P.2d 1059 (App.1984).

The Administrative Law Judge correctly concluded that Dr. Whisler's report was not "directly contrary" to the Notice of Claim Status indicating a permanent disability. While this report did not unambiguously find a "stationary condition" with "permanent function impairment" it did indicate that the claimant's condition was "just about the same" and that he could not return to his pre-injury employment. The report thus raises inferences of a stationary condition and a lessening of post injury working capabilities. Given these inferences, the report is not directly contrary to the Notice of Claim Status and is, therefore, not void under Roseberry.

The carrier next argues that because the February, 1984 Notice of Claim Status was issued at the insistence of the Industrial Commission,...