Field v. Industrial Com'n of Arizona
| Decision Date | 15 September 1983 |
| Docket Number | No. 1,CA-IC,1 |
| Citation | 137 Ariz. 257,669 P.2d 1034 |
| Parties | Gary FIELD, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Olsten Temporary Services, Respondent Employer, Continental Insurance Co., Respondent Carrier. 2891. |
| Court | Arizona Court of Appeals |
In this special action--Industrial Commission review of an award dismissing a request for hearing pursuant to A.R.S. § 23-941(C), we are asked to determine whether the claimant's allegations of invalidity of his waiver of right to protest and appeal required further action by the commission.
The petitioner-claimant, Gary Field, sustained an industrial injury on December 19, 1978, while employed by respondent, Olsten Temporary Services, and his claim was accepted by the employer's carrier, Continental Insurance Company. Benefits were paid until June 1979 when the claim was closed. The claim was then reopened in June of 1980. On July 22, 1981, the carrier issued a notice of claim status closing the reopened case with no earning capacity disability. However, the carrier did indicate on a notice of permanent disability, also issued on July 22, 1981, that the claimant had sustained unscheduled permanent physical impairment.
The Industrial Commission entered a loss of earning capacity award for unscheduled permanent partial disability on August 27, 1981. In that award, the Industrial Commission found that the claimant had sustained a ten percent scheduled general physical impairment related to the industrial injury and, as a result, had sustained a loss in earning capacity of 56.69% which entitled the claimant to $165.00 per month for unscheduled permanent partial disability benefits.
The carrier protested the Industrial Commission award contending that the claimant had sustained no loss of earning capacity as a result of his physical impairment. Concurrently, the claimant requested the Industrial Commission to commute his permanent disability benefits to a lump sum.
Thus, the carrier had challenged the Industrial Commission's determination that petitioner had a significant loss of earning capacity; and, at the same time, the claimant desired to receive a lump sum payment for his loss of earning capacity. During this period, the claimant and the carrier entered into an agreement whereby the claimant would receive $5,000.00 and the carrier would drop its challenge to the August 27, 1981, award of the Industrial Commission. In return, the claimant agreed to stipulate that he had no loss of earning capacity as a result of the injury. Based on the agreement of the parties, the Industrial Commission entered an amended award on November 25, 1981 which found no loss of earning capacity. On that date, the claimant executed a waiver of his right to protest or appeal from the amended award which found no loss of earning capacity.
The claimant, who had been representing himself in these proceedings, obtained the services of an attorney during what would have been the ninety day protest period pertinent to the amended award. On claimant's behalf, counsel filed a request for hearing against the amended award.
The carrier filed a motion to dismiss based on the claimant's waiver of any protest to the amended award.
In the response to the motion to dismiss, the claimant alleged that if allowed to testify he could show that he signed the waiver under duress and also while under the influence of medication which affected his judgment. He asserted that he would not have signed the waiver except for extreme circumstances, including the fact that he was living in the desert in a broken down automobile, and that he executed the waiver in an effort to get some money so that he could find a place to live. The response notified the administrative law judge that John P. Kelly, M.D., who was claimant's treating physician would testify in regard to these issues.
Without conducting an evidentiary hearing, the administrative law judge entered a Findings and Award dismissing the hearing request under the authority of A.R.S. § 23-941(C) which provides:
The commission shall refer the request for the hearing to the administrative law judge division for determination as expeditiously as possible. The presiding administrative law judge may dismiss a request for hearing when it appears to his satisfaction that the disputed issue or issues have been resolved by the parties. Any interested party who objects to such dismissal may request a review pursuant to § 23-943. [Emphasis supplied.]
In support of the award, the carrier contends that the claimant did not...
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