Terry Grantham Co. v. Industrial Com'n of Arizona, 1

• Decision Date: 16 June 1987
• Docket Number: No. 1,CA-IC,1
• Citation: 154 Ariz. 180,741 P.2d 313
• Parties: TERRY GRANTHAM COMPANY, Petitioner Employer, Fremont Indemnity Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Bill M. Boy, Respondent Employee. 3507.
• Court: Arizona Court of Appeals

Page 313

741 P.2d 313

154 Ariz. 180

TERRY GRANTHAM COMPANY, Petitioner Employer Fremont Indemnity Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Bill M. Boy, Respondent Employee.

No. 1 CA-IC 3507.

Court of Appeals of Arizona Division 1, Department B.

June 16, 1987.

[154 Ariz. 181] Jones, Skelton & Hochuli by Larry J. Cohen, Calvin Harris, Phoenix, for petitioner employer and carrier.

Langerman, Begam, Lewis and Marks by Wendi A. Sorensen, Samuel Langerman, Frank Lewis, Phoenix, for respondent employee.

OPINION

KLEINSCHMIDT, Judge.

This is a special action review of an Industrial Commission award granting "medical, surgical and hospital benefits" pursuant to A.R.S. § 23-1062(A). We must determine two issues: (1) whether an employee forfeited his right to have modifications made to his residence when he did not give the carrier prior notice of his intent to move to the residence; and (2) whether a van falls within the category of "other apparatus" for which the carrier must pay under § 23-1062(A). Because we find that the administrative law judge applied the law correctly and because there is a reasonable basis in the record to support the award, we affirm.

An industrial injury rendered the respondent employee, Bill Boy, a quadriplegic. Thereafter, an Industrial Commission Award determined him to be permanently and totally disabled. Upon his release from the hospital, Boy notified the petitioner carrier, Fremont Indemnity (Fremont), of his intent to move into a rental residence on 77th Avenue in Phoenix. After receiving Boy's notice, Fremont provided plywood ramps, a wheelchair, a waterbed, and various apparatus for Boy's use in the residence. Fremont also provided Boy with a specially equipped van. While Fremont paid for the modifications to the van, it deducted fifty dollars per month from Boy's compensation checks for repayment of the van's purchase price.

In order to meet his rent payment, Boy originally shared his residence with two roommates. Eventually, however, Boy was faced with the prospect of making the payment by himself because one of his roommates was planning to marry and the other roommate was out of work. At this time, the opportunity arose for Boy to purchase a residence on West Virginia Avenue in the neighborhood in which he grew up. With the financial assistance of his parents, Boy purchased the Virginia residence and moved into it. Boy then notified Fremont of his move and of his need for structural modifications to his new residence.

After Boy moved into the Virginia residence, the Industrial Commission issued an award finding that his condition was stationary and that he was afflicted with a permanent total disability. Following the Commission's award, Fremont issued a Notice of Supportive Medical Maintenance Benefits in which it agreed to pay a portion of the medical benefits Boy requested. Thereafter, Boy filed a request for investigation seeking specific additional benefits from Fremont. Ultimately, the Commission scheduled formal hearings which resulted in the issuance of a Decision Upon Hearing and Findings and Awards for Supportive Benefits containing eleven separate awards. These awards granted Boy additional benefits. Fremont requests that we review only the award requiring it to pay for modifications to Boy's residence and the award requiring it to pay for Boy's van and its modifications.

MODIFICATIONS TO THE RESPONDENT'S RESIDENCE

Fremont argues that by his failure to give notice of his intent to move to the Virginia residence, Boy forfeited his right to have modifications made to the residence. Section 23-1062(A) of the Arizona Revised Statutes states that "upon notice to the employer" injured employees shall receive medical, surgical, and hospital benefits. This statute requires that the employee give the employer notice prior to unilaterally incurring compensable expenses. Pickett v. Industrial Commission, 26 Ariz.App. 213, 547 P.2d 484 (1976). In Pickett, the injured employee failed to give the employer notice before installing a swimming pool in her yard for therapeutic purposes. Consequently, we held that the employee forfeited her right to have the employer pay for the cost of the pool. In Pickett, however, we did recognize that there are special circumstances in which a compensable medical expense can be incurred unilaterally by the employee "e.g. an emergency where the employee is unable to notify the employer." Id. at 214, 547 P.2d at 485.

It is undisputed that Boy failed to give Fremont, his employer's carrier, prior notice of his intent to move into the Virginia residence. Consequently, we must determine whether special circumstances are present in this case which would allow Boy to move without giving Fremont notice. Fremont argues that if Boy had given it notice of his proposed move it could have explored alternatives to the purchase of the new residence. In his Decision Upon Hearing, the administrative law judge made a specific finding that Boy was "living in a state of emergency" in his 77th Avenue residence. When reviewing an award of the Industrial Commission, we are compelled to sustain such findings if they are reasonably supported by the evidence. See Salt River Project v. Industrial Commission, 128 Ariz. 541, 627 P.2d 692 (1981). We must acknowledge that the administrative law judge's finding of "emergency circumstances" gives that term a very broad definition. Nonetheless, we believe that Boy's situation was sufficiently "special," and his method of resolving it sufficiently reasonable, to require the result that Fremont not escape responsibility for paying for the necessary alterations to Boy's new residence. We say this for several reasons.

Boy was suffering financial difficulties while living in the 77th Avenue residence. During a hearing held in July of 1985, Boy testified as follows:

The reason why I moved from where I lived in the house at 77th Avenue was one of my roommates was getting married. I had two different roommates. One of them drank real heavy and he was out of work and he was--he was getting just worse constantly all the time; he wasn't paying his bills. I couldn't afford to pay them and I couldn't afford to pay, to rent a house by myself. There was, you know--when it's split three different ways, it helped. But by myself, I couldn't. And the opportunity to get a house came up, you know, at a reasonable price.

With the financial help from his parents, Boy was able to remedy his economic situation by moving into a reasonably priced home. Because this home was located in the neighborhood where he grew up, Boy was also able to move into an environment where he had friends and neighbors who were willing to help with his special needs as a quadriplegic.

In disputing the finding of emergency circumstances, Fremont relies heavily on a letter from Boy's attending physician indicating that Boy had entertained the thought of purchasing a home...