Fullen v. Industrial Commission

• Decision Date: 03 April 1979
• Docket Number: No. 13919-PR,13919-PR
• Citation: 122 Ariz. 425,595 P.2d 657
• Parties: Earl R. FULLEN, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Red River Land and Cattle Company, Respondent Employer, Aetna Insurance Company, Respondent Carrier.
• Court: Arizona Supreme Court

Page 657

595 P.2d 657

122 Ariz. 425

Earl R. FULLEN, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Red River Land and Cattle Company, Respondent Employer Aetna Insurance Company, Respondent Carrier.

No. 13919-PR.

Supreme Court of Arizona, In Banc.

April 3, 1979.

Rehearing Denied May 30, 1979.

Philips & Taylor by Christopher J. Philips, Phoenix, for petitioner

John H. Budd, Jr., Chief Counsel The Industrial Com'n of Arizona, Phoenix, for respondent.

Lewis & Roca by Merton E. Marks, R. Kent Klein, Phoenix, for respondent employer and respondent carrier.

CAMERON, Chief Justice.

This is a petition for review of a memorandum decision of the Court of Appeals, Division One, which affirmed the Commission's holding that a petition to reopen was not filed in time to cover an industrially related operation on petitioner's knee. We take jurisdiction pursuant to Rule 47(b), Rules of the Supreme Court, 17A A.R.S.

We must answer the following questions on appeal:

1. Was the letter to the Industrial Commission of 2 January 1975 seeking to reopen ineffective because it was not signed by the petitioner?

2. Did the statement of the physician have to be attached to the letter in order for it to be deemed to have "accompanied" the petition to reopen?

3. Was the letter from the doctor's medical secretary a "statement of the physician" when it was not signed by the doctor?

Petitioner Earl R. Fullen injured his knee while stepping down from a piece of heavy equipment at his Douglas, Arizona, job on 5 September 1972. After treatment and surgery by Dr. W. E. George, a Phoenix orthopedic surgeon, a final award of a scheduled 30% Left leg permanent disability was entered on 24 October 1974.

By the middle of December 1974, it was apparent that more treatment was necessary. Dr. George's secretary, Jacqueline Manker, made attempts to contact the insurance carrier but "no one returned (her) calls." On 2 January 1974, Fullen's then attorney sent a letter to the Industrial Commission that read:

"Re: Earl R. Fullen

I.C.A. Claim No. 2/6 81-72

Carrier Claim No. WC 70 92 65

"Dear Sirs:

"Please be advised that my client Mr. Earl Fullen has been informed that Dr. George has recommended surgery on his hip (sic) as a result of the industrial injury suffered 9-5-72. Dr. George has asked that Mr. Fullen be admitted on January 4th and surgery is to be performed on January 6th. Under the circumstances, and in light of these new developments we hereby submit a request to reopen Mr. Fullen's case for further consideration and possible additional compensation. Please advise me on this at your earliest convenience."

The letter was not signed by Fullen and no written medical report was enclosed with the letter.

The Commission received the letter on 6 January 1975. Dr. George performed further surgery on Fullen's injured knee on 7 January 1975. The Commission sent its form letter on 13 January 1975 to Fullen's address in Douglas and to his Douglas attorney advising by check mark before the appropriate paragraph:

"We are furnishing the form necessary to petition to reopen your claim as you requested. This petition must be accompanied Although the Commission's letter stated that a proper form of petition to reopen was enclosed, in fact such form was not enclosed. Fullen thereafter retained other counsel.

by medical evidence from a physician in support of the claim of new or additional disability. CONSIDERATION CANNOT BE GIVEN WITHOUT THIS SUPPORTING EVIDENCE and such report must be filed within FOURTEEN DAYS after the filing of the petition."

A petition to reopen upon the Commission's form, signed by Fullen, was filed on 28 January 1975. This petition was supported by a 24 January 1975 letter from Dr. George's office addressed to Fullen's Douglas attorney which read:

It is not questioned that Fullen's claim was meritorious. The carrier, however, questioned the Commission's jurisdiction to reopen the claim as of a date prior to the operation on 7 January 1975 because of the failure of Fullen to follow the proper procedure. The hearing officer agreed and held that the petitioner was entitled to benefits only after 29 January 1975, the date the petition to reopen was deemed properly filed by the Commission. Surgical and hospital benefits for the knee operation of 7 January were denied. The Court of Appeals affirmed in an unpublished decision. We granted Fullen's petition for rehearing.

WAS THE JANUARY LETTER SUFFICIENT?

The hearing officer found:

"(T)he document filed on January 6, 1975, is not sufficient for a PETITION TO REOPEN for two reasons:

(a) It was not accompanied by the medical report from a physician setting forth the physical condition of the applicant relating to the claim nor was any such document filed until January 29, 1975. This is not in accordance with (§ 23-1061(H) or Commission Rule 33).

(b) The document filed on January 6, 1975, is signed by the then attorney for the applicant and not by the applicant as required by (Rule 33(a))."

The Arizona Workmen's Compensation Act provides that injured workmen may petition for a reopening of their industrial claims. A.R.S. § 23-1061(H) states:

"An employee may reopen his claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting the reopening of his claim upon the basis of new, additional or previously undiscovered temporary or permanent condition, which petition shall be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim. The payment for such reasonable and necessary medical, hospital and laboratory work expense shall be paid for by the employer or the employer's insurance carrier if the claim is reopened as provided by law and if such expenses are incurred within fifteen days of the filing of the petition to reopen. No surgical benefits or monetary compensation shall be payable for any period prior to the date of filing of the petition to reopen."

The Industrial Commission has, pursuant to A.R.S. § 23-921(B), promulgated its own "(a) Petitions for Reopening of a Claim Based on New, Additional Or Previously Undiscovered Disability or Condition shall be filed with the Commission on forms prescribed by the Commission and which are available upon request. Said petition shall be completed in full, signed by the employee and shall be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim.

rules of procedure. Rule 33 ^* of its rules states in relevant part:

"(b) A Petition to Reopen Based on New, Additional Or Previously Undiscovered Disability Or Condition not accompanied by a statement from a physician shall not be considered filed until the date the medical report is received by the Commission.

"(c) If the statement of the physician is not received within fourteen (14) days after the receipt of a Petition to Reopen Based on New, Additional Or Previously Undiscovered Disability Or Condition, the Commission shall notify in writing all parties in interest that a petition to reopen has been received without the required physician's statement, and no action of acceptance or denial shall be required of the insurance carrier or employer."

The requirement in the rule that the petition be submitted on Commission forms and be signed by the petitioner is not required by the statute and there is nothing in the statute to prevent an attorney from filing a petition for and on behalf of his client. Fullen then is being denied the right to petition to reopen not because of the statute but because of additional requirements contained in the rules of the Commission. Our Court of Appeals has stated:

"The general law regarding the power and authority of an administrative agency to make rules and regulations to carry out its statutory responsibilities is clear. An administrative agency must exercise any rule making authority granted by statute within the framework of that statutory grant. There is no authority or power to create a rule or regulation out of harmony with the statutory grant and...