Workers' Compensation Case Law Update
Grammatico v. Industrial Commission, 211 Ariz 67, 117 P.3d 786 (2005)
The Arizona Supreme Court considered two cases involving Arizona's drug statute. The Arizona Supreme Court held, in both cases, the drug statute as applied, could not be used to bar a claim for an employee's purported drug or alcohol use. The Arizona Supreme Court stated as follows:
We cannot ignore that our Constitutional system for workers' compensation requires the payment of benefits if a necessary risk or danger of employment partially caused or contributed to an industrial accident, without consideration of any fault by the injured employee. Thus, unless and until the Constitution is changed, the legislature cannot abrogate claims for workers' compensation for injuries wholly or partially caused or contributed to by necessary employment risks or dangers solely because an employee fails to pass a drug or alcohol test.
Hypl v. Industrial Commission, 210 Ariz. 318, 111 P.3d 432 (Ct. App. 2006)
In this case, the Court applied the unexplained death presumption in a case not involving the death of an employee. The unexplained death presumption shifts the burden of proving the elements necessary to establish a workers' compensation claim to the Employer. Normally, the injured employee has the burden of proving that his injury arises out of employment and occurs within the course and scope of employment. The unexplained death presumption shifts the burden of proof to the Defendant Employer to prove that the death did not occur within the course and scope of employment or did not arise out of employment. In Hypl, the Applicant was dispatched from Tucson to El Paso to deliver a load of materials. The Applicant was pulled over for erratic driving and found to have suffered a fractured skull. The Applicant could not remember the events surrounding his injury because of brain damage. The Court of Appeals held that the facts of the case established the Applicant had no memory of the cause of or the events leading up to his injury. Neither the employer nor the insurer disputed that the Applicant suffered amnesia as a result of the injury, and could not remember the events leading up to the injury. Therefore, if the Applicant could provide a sufficient factual basis to allow an inference that he was injured in the time and space limitations of his employment, he was entitled to a presumption that his injury occurred in the course of and arose out of his employment. In essence, the Court held that if the Applicant could establish a factual basis for the judge to assume the Applicant was performing his job duties at the time of the alleged injury, then it would be assumed that the injury arose out of the Applicant's employment and occurred during the course and scope of his employment. The prerequisites for the application of this presumption appear to be that the Applicant truthfully has no memory of the events surrounding his injury for medical reasons. In that case, if the Applicant can demonstrate that he probably was performing job duties for his employer at the time of the alleged injury, the burden will then shift to the Defendants to prove that the injury did not occur during the course and scope of employment, or did not arise out of employment.
Martins v. Industrial Commission, 121 P.3d 186 (Ct. App. 2005)
In this case, Applicant moved for a protective order to allow a friend to attend her psychiatric examination. The Administrative Law Judge determined that the Applicant had not established good cause to allow the person to attend the IME. The Court of Appeals upheld the Judge's decision. The Court concluded that A.R.S. § 23-1026(B), which allows an employee to have a physician present at an evaluation could not be expansively read to also allow a friend to be present for the examination. The Court then went on to evaluate Industrial Commission Rule 114(E). That rule grants discretion to an Administrative Law Judge to protect a claimant from "annoyance, embarrassment, oppression or undue burden or expense". That rule also allows the Administrative Law Judge to preclude an examination or allow an examination "only on specified terms and conditions, including a designation of the time, place and examining physician". The Court of Appeals held that the rule allows an Administrative Law Judge, in appropriate circumstances, to allow a third party to attend an examination. The Court concluded that the ALJ found that good cause was not shown and, therefore, appropriately precluded Applicant's friend from attending the IME. As a result, while the statute would not allow a friend to attend an IME, the Court left open the possibility that an ALJ, under the right circumstances, could enter a ruling allowing someone other than a physician to attend an IME with an injured worker.
AAA Cab Service v. Industrial Commission of Arizona
This case deals with the circumstances under which an individual may pursue a civil remedy despite the exclusivity clause usually prohibiting civil law suits against an employer. In this case, the decedent husband worked for AAA Cab Service. The widow filed a claim for death benefits which was denied. The matter proceeded to hearing and an award was entered in favor of the widow for a compensable death claim. The widow then withdrew her death benefits claim and did not accept benefits. The widow elected to pursue a civil remedy against the employer contending the decedent was an independent contractor and not an employee. The Court of Appeals held that the widow was not precluded from pursuing her civil remedy. Because the widow had not accepted benefits for the death of her husband, she could pursue a civil remedy against the taxi company.
Western Water Works v. Industrial Commission of Arizona
This case deals with a technical procedural issue. An Applicant timely filed a claim against a subcontractor for a work related injury. The employee then moved to join the general contractor after the statute of limitations had run on the worker's compensation claim. The Court of Appeals held that because the contractor had been properly joined in the matter, the statute of limitations did not run to preclude Applicant's action against the contractor.
Martinez v. Industrial Commission of Arizona
The Applicant filed a Petition for Special Action challenging an Industrial Commission decision. Instead of filing the petition with the Court of Appeals, the Applicant filed the Petition for Special Action with the Industrial Commission on the last day to file the appeal. The Court of Appeals held that even though the Applicant filed the Petition for Special Action at the wrong place, filing the Petition with the Industrial Commission was sufficient to grant the Court of Appeals jurisdiction over Applicant's Petition for Special Action.
Meiners v. Industrial Commission of Arizona
This case stands for the proposition that if an Applicant files a Petition for Rearrangement, the Defendant Insurance Carrier, Third-Party Administrator or Self-Insured Employer should also file a Petition for Rearrangement if there is a reasonable basis for doing so. In the Meiners case, Applicant filed a Petition for Rearrangement, but the Defendant did not. At hearing, Defendant successfully proved that the Commission award was actually too high. Therefore, not only did the Applicant lose on his Petition for Rearrangement, he ended up with a lower monthly award than he had before he filed the Petition for Rearrangement. The Court of Appeals held that because the Defendant Employer did not file a Petition for Rearrangement, the Applicant's LEC could not be lowered. As a result, if only the Applicant files a Petition for Rearrangement, the award can only either stay the same or be increased. Therefore, all Defendants should carefully take a look at filing a Petition for Rearrangement if Applicant does so in order to preserve the option to obtain a lower monthly award.
Morse v. Industrial Commission of Arizona
Applicant was working for one employer and had taken a job with another employer. Before Applicant could start the second job, he was injured. Applicant wanted to use the wages with the second employer to establish his average monthly wage because the wages he would had been earning had he not been injured would have been higher than with the employer the Applicant was working for when he was injured. The Court of Appeals held that prospective wages are too speculatively to use for establishing an average monthly wage.
Gamez v. Industrial Commission of Arizona
this case has an interesting concurrence. The appellate Judge writing the concurrence held that Arizona Law does not provide coverage for individuals not legally in the United States. Because the opinion reaching this conclusion is only a concurrence, it does not establish the law in Arizona.
Schuck & Sons Construction v. Industrial Commission of Arizona
In this case, the Applicant held two jobs. One with Schuck & Sons and the other as a self-employed contractor. The Applicant's earnings with Schuck & Sons resulted in an average monthly wage of $2,400.00. Therefore, in calculating the average monthly wage, the injured worker's concurrent employment with his own company was not considered. After the Applicant's injury, he ended up with an unscheduled permanent impairment. The Commission issued its award finding the Applicant had not suffered a loss of earning capacity because even though the Applicant could not return to work for Schuck & Sons, he continued working for his own company earning in excess of his average monthly wage. The Industrial Commission Judge held that the Applicant's post injury earnings with the Applicant's own company could not be considered since those wages were not considered in setting the average monthly wage. The Court of Appeals set aside the Judge's decision. The Court of Appeals held that the Applicant's employment with his own company could be considered in establishing whether or not the Applicant had a loss of earning capacity even though those wages were not considered in setting the average monthly wage. Because wages from Schuck & Sons exceeded the maximum average monthly wage, there was no reason to include the wages from the worker's own business when setting the average monthly wage. That fact did not preclude considering Applicant's income from his own business in deciding whether he suffered a loss of earning capacity.
Parra v. Industrial Commission of Arizona
In this case, the Defendant Employer attempted to reduce Applicants temporary total disability benefits by subtracting a pre-existing LEC award. The Court of Appeals held that in this case, temporary total disability benefits could not be reduced by a pre-existing LEC award.
Polanco v. Industrial Commission of Arizona
In order to successfully Petition to Reopen, Applicant must prove there has been an objective change in his condition since the claim was last closed. The objective change requirement is contained in A.R.S. §23-1061(H). The Court of Appeals held that the objective change requirement is constitutional.