Mills v. Industrial Commission

• Decision Date: 09 January 1975
• Docket Number: CA-IC,No. 1,1
• Citation: 530 P.2d 385,23 Ariz.App. 28
• Parties: Samuel W. MILLS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Clyde Nelson Construction Co., Respondent Employer, Fidelity & Guaranty Insurance Underwriters, Respondent Carrier. 993.
• Court: Arizona Court of Appeals

Page 385

530 P.2d 385

23 Ariz.App. 28

Samuel W. MILLS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Clyde Nelson Construction Co., Respondent Employer Fidelity & Guaranty Insurance Underwriters, Respondent Carrier.

No. 1 CA-IC 993.

Court of Appeals of Arizona, Division 1, Department A.

Jan. 9, 1975.

Rehearing Denied Feb. 24, 1975.

Review Denied April 1, 1975.

Alston, Bailey & Edwards by Cecil A. Edwards, Jr., Phoenix, for petitioner.

Edward F. Cummerford, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Moore & Romley by Craig R. Kepner, Phoenix, for respondent employer and carrier.

OPINION

DONOFRIO, Presiding Judge.

This case is before the Court by writ of certiorari to review the lawfulness of the decision upon review issued by the Industrial Commission on May 4, 1973 affirming the decision of the hearing officer.

On July 13, 1971 petitioner Mills filed a claim for benefits alleging the sustaining of an injury to this left thumb while using a power saw in the course of his employment with Clyde Nelson Construction Company. The carrier accepted petitioner's industrial claim by notice of claim status dated July 29, 1971. On August 13, 1971 the Industrial Commission entered its notice of average monthly wage determined at $587.33. This determination was never challenged. Approximately 15 months after his initial injury, after a temporary return to work, and after surgery on his thumb, petitioner returned to work on August 13, 1972, his temporary compensation being terminated on that date. Shortly thereafter on September 7, 1972 petitioner's medical condition became stationary, his medical benefits were terminated, and he was discharged with a permanent disability on that date. Contemporaneous with the notice of claim status reflecting the above, the carrier issued its permanent scheduled award on Sept. 19, 1972 determining that petitioner was entitled to a scheduled award due to the 50% Functional loss of use of his left thumb. Petitioner timely requested a hearing in regard to this scheduled award, claiming that he was entitled to an unscheduled award.

At the formal hearing of this protest all the evidence was directed to the issue of whether petitioner had sustained a prior permanent injury resulting in a loss of earning capacity. No evidence was presented and no objection was made to the earlier average monthly wage determination by the Commission. In addition, no objections were raised concerning petitioner's status or entitlement to temporary compensation benefits between his return to work on August 13, 1972 and the termination of his medical benefits three weeks later on Sept. 17, 1972.

Petitioner first seeks review of his average monthly wage determination based on the failure of the Commission to comply with A.R.S. § 23--1061(F). The pertinent portion of that section reads:

'The commission shall thereupon make its own independent determination of the average monthly wage pursuant to § 23--1041. The commission shall within thirty days after receipt of such notice notify the employee, employer and carrier of such determination. The amount determined by the commission shall be payable retroactive to the first date of entitlement. The first payment of compensation shall be accompanied by a notice on a form prescribed by the commission stating the manner in which the amount of compensation was determined.'

It is claimed by petitioner that no item in the file indicates that the Commissioners considered the matter of petitioner's average monthly wage and that because the file is silent as to any action by the Commission, there is a presumption that the Commission did not act, citing Verdugo v. Industrial Commission, 15 Ariz.App. 155, 487 P.2d 1 (1971). This decision, however, was vacated by our Supreme Court in Verdugo v. Industrial Commission, 108 Ariz. 44, 492 P.2d 705 (1972). Nonetheless, the Supreme Court decision in Verdugo does indicate that when the file is silent as to the action of the Commission in making the alleged award, the presumption is that the Commission did not make the award. 108 Ariz. at 49, 492 P.2d 705. In holding this way, the Supreme Court was laying to rest the split in interpretation of Department A and Department B of the Court of Appeals as to this issue of presumption. In following the decisions of this Department in Cauley v. Industrial Commission, 13 Ariz.App. 276, 475 P.2d 761 (1971) and Land v. Industrial Commission, 15 Ariz.App. 117, 486 P.2d 229 (1971), the Supreme Court said:

'* * * In the case at bar, the evidence as to whether the Commission did consider and act is readily available to the Commission, while proof that they did not is practically impossible for the petitioner to show. We feel the presumption should be that the Commission did not act absent something in the file showing that the Commission did, in fact, consider the matter and act accordingly: * * *' 108 Ariz. at 48, 492 P.2d at 709.

Respondent's reply to this argument is one of res judicata as at no time did petitioner request a hearing to protest the average monthly wage determination. They therefore claim, citing abundant authority, that a workman cannot seek review of a claim for the first time in the reviewing court where such claim was not raised or presented initially to the Industrial Commission. Thus, failure to challenge the correctness of the average monthly wage determination within the 60-day clause of A.R.S. § 23--947 becomes res judicata. See Talley v. Industrial Commission, 105 Ariz. 162, 461 P.2d 83 (1969); Russell v. Industrial Commission, 104 Ariz. 548, 456 P.2d 918 (1969); Garcia v. Industrial Commission, 20 Ariz.App. 145, 510 P.2d 1050 (1973). Respondent in attempting to bolster this argument under the circumstances Pinkerton v. Industrial Commission, 15 Ariz.App. 275, 488 P.2d 480 (1971) for the proposition that even where the Industrial Commission fails to perform its positive duty to check the insurance carrier's calculation pursuant to A.R.S. § 23--1061(F), the Court will not grant relief. In Pinkerton, however, petitioner was not claiming that the attempt to make the determination was unauthorized or that no independent determination was made, but rather that the initial determination was erroneous. Thus, Pinkerton is a different set of circumstances. We believe that under the Garza decisions, i.e., Garza v. Industrial Commission, 17 Ariz.App. 525, 498 P.2d 599 (1972) and the opinion upon rehearing, 18 Ariz.App. 223, 501 P.2d 399 (1972), and most recently under Mendoza v. Industrial Commission, 528 P.2d 184, 1 CA-IC 995 (1974), res judicata is not a defense when the Commission's determination as to average monthly wage is a nullity for failure to comply with A.R.S. § 23--1061(F). As said by Chief Judge Jacobson in the Mendoza decision,

'* * * However, such a defense presupposes that the average monthly wage determination was proper for if it was void from its inception, the doctrine of res judicata would never come into play. * * *'

Our inquiry, therefore, must focus on the validity of the Commission's average monthly wage determination as to whether the Commission rubberstamped the carrier's calculations or made an independent determination as...