Maricopa County v. Industrial Com'n of Arizona, 1

• Decision Date: 11 April 1985
• Docket Number: CA-IC,No. 1,1
• Citation: 699 P.2d 389,145 Ariz. 14
• Parties: COUNTY OF MARICOPA and Home Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Donald S. Ballard, Respondent Employee. 2999.
• Court: Arizona Court of Appeals

Page 389

699 P.2d 389

145 Ariz. 14

COUNTY OF MARICOPA and Home Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Donald S. Ballard, Respondent Employee.

No. 1 CA-IC 2999.

Court of Appeals of Arizona Division 1, Department D.

April 11, 1985.

Eubank, J., dissented and filed opinion.

Moore & Long by Joseph L. Moore, Phoenix, for petitioners.

Sandra Day, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Charles M. Wilmer, Phoenix, for respondent employee.

OPINION

KLEINSCHMIDT, Judge.

In this special action review of an industrial commission award granting benefits for time lost from work for medical treatment, the carrier raises the following issues:

1. Whether a July 8, 1981, notice of claim status became final because the claimant abandoned a request for hearing protesting it.

2. Whether the administrative law judge erred in awarding temporary compensation benefits because claimant's absences from work were compensated by sick leave pay equivalent to his regular wages.

3. Whether claimant failed to meet his burden of proving a causal relationship between the injury and his condition.

Claimant, Donald S. Ballard, filed a claim for worker's compensation benefits for an injury sustained April 24, 1981, while at work. On July 8, 1981, the carrier issued a notice of claim status accepting the claim for benefits but disallowing disability compensation because no time was lost from work in excess of seven days. On January 25, 1982, the carrier issued a notice of claim status terminating all benefits effective September 3, 1981, and determining that the injury resulted in no permanent disability. On February 19, 1982, claimant filed a request for hearing protesting both the July 8, 1981, and January 25, 1982, notices. The protest of the July 8, 1981, notice was untimely.

On March 22, 1982, the carrier issued a notice of claim status rescinding its January 25, 1982, notice. This notice indicated that claimant was continuing to receive medical treatment. On May 5, 1982, the commission sent a letter to the parties stating that a review of the file revealed that the carrier's March 22, 1982, notice appeared to resolve the issues in dispute. The letter further stated that unless notified to the contrary, the commission would assume that claimant had abandoned his right to a hearing on the matter. The claimant did not directly reply to this letter.

On June 21, 1982, the carrier issued another notice of claim status terminating all benefits without permanent impairment. On August 16, 1982, claimant sent a letter to the commission stating that he had lost time from work and continued to need medical treatments. He requested an investigation to determine compensation benefits for the time lost from work from the injury and attending medical appointments. See generally A.R.S. § 23-1061(J). ¹

On August 31, 1982, claimant also filed a request for hearing protesting the June 21, 1982, notice. On September 22, 1982, the commission sent a letter to the parties stating that it could not determine whether the claimant was entitled to compensation and referred the matter to the hearing division. Thereafter, claimant withdrew his August 31, 1982, request for hearing. On December 6, 1982, a hearing was conducted and claimant testified to the time lost from work from the injury and subsequent medical treatments. Mr. Frank L. Russo, the employer's supervisor in charge of payroll, testified regarding the employer's sick leave policy.

The administrative law judge awarded 82.5 hours of compensation benefits for time lost from the injury and attending medical treatments subsequent to the injury. A supplemental decision affirming the award on review was issued and this special action followed.

JURISDICTION

For the first time on appeal, the carrier argues that the administrative law judge lacked jurisdiction to determine whether claimant was entitled to benefits because claimant abandoned his request for hearing protesting a July 8, 1981, notice of claim status. As a general rule, failure to raise an issue before the administrative tribunal precludes appellate review. See Stephens v. Industrial Commission, 114 Ariz. 92, 559 P.2d 212 (App.1977). An exception exists if a jurisdictional defect is alleged. Calixto v. Industrial Commission, 126 Ariz. 400, 616 P.2d 75 (App.1980).

The carrier cites no authority to support its position that a notice of claim status that has been protested becomes res judicata if the protest is abandoned. Although the carrier's assertion may be correct, we find that the carrier has waived the issue.

On February 19, 1982, claimant filed a request for hearing protesting both the July 8, 1981, and January 25, 1982, notices of claim status. ² The request for hearing was not withdrawn. The carrier received copies of the correspondence between claimant and the commission regarding the commission's attempt to administratively resolve the dispute pursuant to A.R.S. § 23-1061(J). However, the A.R.S. § 23-1061(J) request was not a response to the commission's letter.

The administrative procedure set forth in A.R.S. § 23-1061(J) provided claimant with an alternative manner of determining whether he was entitled to compensation. Although the commission determined it could not resolve the issue without a hearing, the hearing conducted encompassed the same issues that would have been litigated pursuant to the February 19, 1982, request for hearing. Even if the claimant abandoned the February 19, 1982, request for hearing, the carrier has waived the issue because it failed to assert the finality of the July 8, 1981, notice at the A.R.S. § 23-1061(J) hearing. The res judicata effect of a notice of claim status is an affirmative defense that the carrier should have raised at the A.R.S. § 23-1061(J) hearing on the issue of whether claimant was absent in excess of seven days from work. Cf. Superlite Builders v. Industrial Commission, 126 Ariz. 51, 612 P.2d 507 (App.1980).

DOUBLE RECOVERY

Following the April 24, 1981, injury, claimant was absent from work on Monday, April 27, 1981; Tuesday, April 28, 1981, and Wednesday, April 29, 1981. Claimant was also absent for four hours on Thursday, April 30, 1981, and did not work Friday, May 1, 1981, and Monday, May 4, 1981. On Tuesday, May 5, 1981, claimant returned to his regular employment duties. Between May 8, 1981, and June 7, 1981, claimant was absent 37.5 hours from work because he was attending medical appointments. Claimant received sick leave pay, which was equivalent to his regular wages, for all times he was absent from work. According to claimant, the April 24, 1981, injury resulted in a loss of accrued sick leave hours. Sick leave hours could not be converted into wages unless claimant was sick.

A.R.S. § 23-1062(B) states:

The first installment of compensation is to be paid no later than the twenty-first day after written notification by the commission to the carrier of the filing of a claim except where the right to compensation is denied. Thereafter, compensation shall be paid at least once each two weeks during the period of temporary total disability and at least monthly thereafter. Compensation shall not be paid for the first seven days after the injury. If the incapacity extends beyond the period of seven days, compensation shall begin on the eighth day after the injury, but if the disability continues for one week beyond such seven days, compensation shall be computed from the date of the injury.

(Emphasis added).

Noting some ambiguity in the last sentence of A.R.S. § 23-1062(B), the administrative law judge interpreted the terms "incapacity" and "disability" to mean the same thing. Specifically, he found:

Considering all of the evidence as a whole and also considering the provisions of A.R.S. § 23-1062, the undersigned finds that the applicant's incapacity extended beyond the period of the first seven days after his injury and that his disability continued for one week beyond those seven days. This is based upon construing the Statute to mean that for purposes of computing the beginning of compensation, the words 'disability' and 'incapacity' mean the same thing and that the fact that the applicant must leave his job in order to get medical treatment which was reasonably required because of his industrial injury means that he has sustained an incapacity or disability within the meaning of A.R.S. § 23-1062 B and therefore, his compensation should be computed from the date of his injury.

The administrative law judge found that claimant's temporary compensation benefits commenced from the date of injury. Claimant was awarded 82.5 hours of temporary compensation, which represented the total time lost from work between the date of injury and June 7, 1982. In the supplemental award affirming the decision granting benefits, the administrative law judge indicated that claimant was entitled to receive both compensation benefits and sick leave pay because the sick pay was merely a benefit accumulated for past services rather than the injury. The supplemental decision also noted that the carrier improperly assumed that the threshold waiting period set out in A.R.S. § 23-1062(B) commenced with the claimant's disability. The administrative law judge found that the waiting period consisted of consecutive calendar days following the date of injury.

On appeal, the carrier attacks the award because claimant received double recovery: both sick leave pay and temporary compensation benefits. The carrier contends that the terms "incapacity" and "disability" as set forth in the last sentence of A.R.S. § 23-1062(B) should both be interpreted to mean loss of earning capacity. According to the carrier, claimant sustained no loss of earning capacity because he received sick leave pay equivalent to his regular wages while absent from work. ³ We agree with the carrier that the terms "incapacity" and "disabilit...