Shockey v. Industrial Com'n of Arizona

• Decision Date: 30 December 1983
• Docket Number: No. 1,CA-IC,1
• Citation: 680 P.2d 823,140 Ariz. 113
• Parties: Rita F. SHOCKEY, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Ameron, Respondent Employer, Ameron, Respondent Carrier. 2947.
• Court: Arizona Court of Appeals

Page 823

680 P.2d 823

140 Ariz. 113

Rita F. SHOCKEY, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Ameron, Respondent Employer Ameron, Respondent Carrier.

No. 1 CA-IC 2947.

Court of Appeals of Arizona Division 1, Department B.

Dec. 30, 1983.

Reconsideration Denied Feb. 22, 1984.

Review Denied May 10, 1984.

Jennings, Strouss & Salmon by Steven C. Lester, Phoenix, for petitioner.

Jones, Skelton & Hochuli by Calvin Harris, Phoenix, for respondent employer and respondent carrier.

Sandra Day, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

OPINION

MEYERSON, Presiding Judge.

Four issues are raised in this special action review of an Industrial Commission decision upon review which reversed an award for continuing benefits:

1. Whether the failure of the administrative law judge (judge) to render a decision upon review within sixty days pursuant to A.R.S. § 23-943.F. (Supp.1983) left the judge without jurisdiction to enter the decision upon review.

2. Whether the decision upon review is sufficiently specific.

3. Whether the decision upon review is supported by the evidence.

4. Whether the judge was required to authorize benefits for surgery undergone by the claimant during the period when the award was on administrative review.

FACTS

Petitioner, Rita F. Shockey, hurt her back on September 3, 1981, while working for respondent employer, Ameron, when she slipped on a concrete ramp and fell. Her workers' compensation claim was accepted for benefits. In December, 1981, petitioner was examined by a group of physicians who determined that her condition was stationary with no permanent functional impairment. Petitioner's treating physician, on January 10, 1982, released her to regular work without the need of further medical care. Her physician also discharged her with no permanent impairment.

Based upon the physicians' reports, the carrier issued a notice of claim status terminating petitioner's temporary benefits effective January 10, 1982. Petitioner requested a hearing against the carrier's closure of her claim, and formal hearings were held on July 8, 1982, and August 26, 1982. Evidence presented at the hearing included petitioner's testimony and the testimony of Gerald C. Moczynski, M.D., and Stuart Phillips, M.D.

An award was issued by the judge on September 2, 1982. The judge accepted the testimony of Dr. Phillips that petitioner needed additional back surgery as a result of her industrial injury. The award also determined that petitioner was entitled to total temporary benefits until her condition relative to the industrial injury became stationary. The carrier requested the judge to review the award and to change the finding regarding the conflict of the evidence between Dr. Moczynski and Dr. Phillips. The judge was asked to conclude that petitioner's condition was stationary without need of further medical treatment and without permanent physical impairment. On November 15, 1982, petitioner opted to proceed with the surgery recommended by Dr. Phillips, although the time for review of the award had not expired.

On December 7, 1982, more than sixty days after the request for review, the judge issued a decision upon review which reversed the prior findings and award. The decision upon review left intact a determination that petitioner was entitled to temporary total benefits until January 10, 1982, but found that as of that date, her condition became stationary with no permanent impairment. In effect, the judge reversed the prior decision accepting the testimony of Dr. Phillips that petitioner was in need of further surgery. This special action followed. ¹

JURISDICTION TO ENTER DECISION UPON REVIEW

The award in this case was entered on September 2, 1982. Ameron's request for review was filed on October 1, 1982, and petitioner's response was filed on October 18, 1982. The decision upon review in this case was not filed within sixty days of October 1, 1982, the date upon which review was requested, but was instead filed on December 7, 1982, or seven days late. On review, petitioner contends that the language of A.R.S. § 23-943.F. (Supp.1983) is mandatory and that the judge was without jurisdiction to issue a decision upon review after the expiration of sixty days.

A.R.S. § 23-943.F. (Supp.1983) provides:

The presiding administrative law judge may affirm, reverse, rescind, modify or supplement the award and make such disposition of the case as is determined to be appropriate. A decision upon review shall be made within sixty days after the review has been requested, with preference being given to those cases not receiving compensation.

After reviewing the arguments of the parties, we find that the interpretation of the sixty-day time limit in A.R.S. § 23-943.F. (Supp.1983) gives rise to similar policy considerations as are encountered in regard to rulings by superior court judges.

The Arizona Constitution provides:

Every matter submitted to a judge of the superior court for his decision shall be decided within sixty days from the date of submission thereof. The Supreme Court shall by rule provide for the speedy disposition of all matters not decided within such period.

Ariz. Const. art. VI, § 21. Notwithstanding the mandatory language of this constitutional provision, our courts have held that the provision is a strong directive but is not mandatory, and that failure to render judgment within sixty days does not divest the superior court of jurisdiction. Estate of Appleton v. Dunkel, 15 Ariz.App. 490, 493, 489 P.2d 864, 867 (1971); Western Savings and Loan Ass'n v. Diamond Lazy K Guest Ranch, Inc., 18 Ariz.App. 256, 261, 501 P.2d 432, 437 (1972). As pointed out by Ameron, these cases relied on the early decision of Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926) (construing the former provision, Ariz. Const. art. VI, § 15) which resolved the issue and is still good law today. In Williams, the Arizona Supreme Court noted that the Washington Constitution, like Arizona's, requires that judgments be rendered within sixty days and also provides that the provisions are mandatory unless by express words they are declared to be otherwise. Agreeing with the rationale of the Washington Supreme Court in Demaris v. Barker, 33 Wash. 200, 74 P. 362 (1903), our supreme court recognized that the purpose of such a provision was to ensure the "speedy determination of causes" but emphasized:

[I]t was never thought that the remedy was to be found in the holding that the judgment afterwards rendered is nugatory. To give it this construction is to prolong the very evil it was sought to avoid, and to punish the very persons whom it was intended should be its beneficiaries. If the judgment, when rendered, is to be declared void, then the litigants, who have already been subjected to an unconstitutional delay must again be subjected to the additional delays necessary to again bring the cause to the condition it was before the court violated its sworn duty. They must also pay the accruing costs necessary for that purpose. Were the delay something within the control of the litigant, were it caused by his own dereliction, the conclusion contended for might be tolerated. But the litigant cannot control the action of the court after he has submitted his cause for its decision.... To punish the litigant for the wrongs of the court which he has no power to prevent, is not, we repeat, the purpose of this constitutional provision, and to so hold would be subversive of its intent.

Williams, 29 Ariz. at 543, 243 P. at 403 (quoting Demaris, 33 Wash. at 203, 74 P. at 363).

The actions of an administrative law judge are no less significant to the litigant in a workers' compensation matter than are the actions of the superior court judge in a civil case. We find that the same considerations, articulated above, pertain to the time limits provided by statute for the entry of a decision upon review. The carrier in this case, who by right requested review of the decision, does not control the action of the judge in rendering the decision upon review within the sixty-day time frame of A.R.S. § 23-943.F. (Supp.1983). To hold that the judge is without jurisdiction to enter a decision upon review after the passage of sixty days, would be to deprive a litigant of the right to review on the basis of circumstances over which that litigant has no control. On this basis, and upon the same reasoning found in the Arizona cases that discuss the analogous constitutional provision, we find that the sixty-day provision is necessarily directive and not mandatory. Thus, although...