Jose A. Escobar v. Marshall Foundation and Pinnacle Risk Management , 230 Ariz. 397 ( 2012 )

FILED BY CLERK
IN THE COURT OF APPEALS AUG 31 2012
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
JOSE A. ESCOBAR, ) 2 CA-IC 2012-0001
) DEPARTMENT B
Petitioner Employee, )
) OPINION
v. )
)
THE INDUSTRIAL COMMISSION OF )
ARIZONA, )
Respondent, )
)
MARSHALL FOUNDATION, )
)
Respondent Employer, )
)
PINNACLE RISK MANAGEMENT, )
)
Respondent Insurer. )
)
SPECIAL ACTION – INDUSTRIAL COMMISSION
ICA Claim No. 20082-910330
Insurer No. 2008594676
LuAnn Haley, Administrative Law Judge
AWARD AFFIRMED
Dee-Dee Samet, P.C.
By Dee-Dee Samet Tucson
Attorney for Petitioner Employee
The Industrial Commission of Arizona
By Andrew F. Wade Phoenix
Attorney for Respondent
Frank W. Frey Tucson
Attorney for Respondents
Employer and Insurer
K E L L Y, Judge.
¶1 In this statutory special action, petitioner Jose Escobar argues we should
abrogate Hoosava v. Industrial Commission, 1 Ariz. App. 6, 398 P.2d 683 (1965), on
which the administrative law judge (ALJ) relied in concluding Escobar was eligible to
receive only scheduled benefits for multiple injuries to the same extremity incurred in a
single work-related accident. For the following reasons, we affirm.
Background
¶2 The relevant facts are undisputed. In October 2008, Escobar was injured in
a work-related accident while employed by respondent Marshall Foundation, and his
claim for workers’ compensation benefits was accepted. Escobar underwent surgery and
the ALJ subsequently found that his condition was stationary and stable and that he had a
scheduled, five percent permanent impairment of his “right lower extremity.”1 Escobar
filed a request for review, claiming the injuries should have been treated as unscheduled
disabilities, and the ALJ affirmed its original award. This statutory special action
followed.
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Escobar injured his right leg at the knee and ankle. Although his opening brief
also states his foot was injured, the record indicates that the injury was to his ankle, not
his foot.
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Discussion
¶3 Escobar argues he is entitled to an unscheduled award for his injuries
because “an impairment of the ankle and of the knee in the same accident should be
considered as an unscheduled impairment” compensable under A.R.S. § 23-1044(C)
rather than a scheduled impairment pursuant to § 23-1044(B). We review this legal issue
de novo. See Anton v. Indus. Comm’n, 141 Ariz. 566, 569, 688 P.2d 192, 195 (App.
1984).
¶4 Citing our decision in Hoosava, the ALJ concluded that multiple injuries to
one extremity arising from the same accident are properly classified as scheduled.
Accordingly, because the ALJ found “no evidence to establish that [Escobar] injured his
knee and ankle in separate incidents” she denied his request to designate the injuries as
unscheduled. In Hoosava, the petitioner lost several fingers from the same hand in an
industrial accident. 1 Ariz. App. at 6, 398 P.2d at 683. Relying on § 23-1044(B), which
lists each finger as a separate, scheduled loss, we agreed with the Industrial
Commission’s decision that the individual finger injuries amounted to three scheduled
injuries rather than an unscheduled loss. Id. at 6-7, 398 P.2d at 683-84. We concluded
that because all the injuries occurred to the same hand and there were no additional losses
to other body parts, the finger losses were compensated properly as scheduled.2 Id. at 7,
2
Although Hoosava specifically addressed multiple injuries to the hand, it has
been interpreted broadly to hold that injuries to multiple parts of the same extremity
received in a single industrial accident are scheduled. See Special Fund Div., Indus.
Comm’n v. Tabor, 201 Ariz. 89, ¶ 3, 32 P.3d 14, 15 (App. 2001); Arizona Workers’
Compensation Handbook § 7.5.1.2 (Ray J. Davis et al. eds., 1992 and Supp. 2011).
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398 P.2d at 684. Escobar acknowledges that Hoosava requires multiple injuries to the
same extremity incurred in a single accident to be designated scheduled losses. But, he
asserts we should reconsider Hoosava for public policy reasons and in light of our
supreme court’s decision in Rodgers v. Industrial Commission, 109 Ariz. 216, 508 P.2d
46 (1973).
¶5 In Rodgers, the petitioner suffered an industrial injury to his right hand and
was awarded scheduled benefits. 109 Ariz. at 217, 508 P.2d at 47. In a subsequent
industrial accident, the petitioner suffered another injury to his right hand and received an
additional scheduled award. Id. On review, our supreme court held that when
successive, scheduled injuries are received in separate accidents, they should be
compensated as unscheduled. Id. at 217-18, 508 P.2d at 47-48.
¶6 Escobar concedes his injuries cannot be considered unscheduled under
Rodgers because they resulted from a single accident. But, he asserts that it “is hard to
understand why . . . [he] should be treated so differently under the worker’s
compensation law” simply because his injuries did not result from separate accidents. He
reasons that based on our supreme court’s extension of unscheduled benefits in Rodgers
as well as “the spirit and intent of the worker’s compensation law” we should abrogate
Hoosava and permit his injuries to be compensated as unscheduled. Our jurisprudence,
however, does not permit such an outcome.
¶7 In Rodgers, the supreme court based its decision on § 23-1044(E), which
provides:
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In case there is a previous disability, as the loss of one eye,
one hand, one foot or otherwise, the percentage of disability
for a subsequent injury shall be determined by computing the
percentage of the entire disability and deducting therefrom
the percentage of the previous disability as it existed at the
time of the subsequent injury.
The supreme court reasoned that “[w]hen the entire effect of the successive injuries
results in disabilities which do not come within one of the scheduled classifications, there
is no way that the resulting disability can be classified as scheduled and still give
meaning and effect to [§ 23-1044(E)].” Id. In later cases, the court reiterated that
subsection (E) is the basis for an unscheduled award in the event of successive injuries.
See Alsbrooks v. Indus. Comm’n, 118 Ariz. 480, 483, 578 P.2d 159, 162 (1978)
(subsection (E) requires successive, scheduled injury to be treated as unscheduled); All
Star Coach, Inc. v. Indus. Comm’n, 115 Ariz. 335, 336, 565 P.2d 515, 516 (1977)
(“When a worker suffers successive injuries, A.R.S. § 23-1044(E) is triggered.”).3 But
§ 23-1044 does not extend unscheduled benefits to employees who sustain multiple
injuries to the same extremity in a single accident. Thus, even were we to agree with
Escobar that policy considerations support extending unscheduled benefits in his
3
In support of his argument that injuries to the same extremity resulting from the
same accident should be unscheduled, Escobar cites Ossic v. Verde Central Mines in
which our supreme court stated, “If the complete effect is the test when the injuries are
received separately, we see no reason why it should not be the same when they are
received simultaneously.” 46 Ariz. 176, 189, 49 P.2d 396, 402 (1935). But Ossic’s
injuries, although all caused by a single blow to his head, seriously impaired several
bodily functions. Id. at 180, 49 P.2d at 398. And, when multiple scheduled injuries
affect distinct bodily functions to such an extent that they are likely to affect the worker’s
ability to obtain employment, the commission may consider this in determining
appropriate compensation. See id. at 191, 49 P.2d at 402. That is not the case here.
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circumstance, that decision must be made by our legislature. See Alsbrooks, 118 Ariz. at
483, 578 P.2d at 162.
¶8 Moreover, despite Escobar’s assertion that “[i]t is hard to understand why
. . . [he] should be treated so differently,” the statutory scheme suggests important policy
considerations were involved in our legislature’s decision to extend unscheduled benefits
to successive, scheduled injuries. Although the primary purpose of the Workers’
Compensation Act is to protect the injured employee, it also exists to protect the
employer and the state compensation fund. See Stephens v. Textron, Inc., 127 Ariz. 227,
230, 619 P.2d 736, 739 (1980); Nation v. Weiner, 145 Ariz. 414, 420, 701 P.2d 1222,
1228 (App. 1985). To protect employers, the legislature created a special fund to
compensate the employer of an employee with a preexisting scheduled injury who suffers
a second scheduled injury as defined by § 23-1044(B). See A.R.S. § 23-1065(B), (D).
The purpose of this fund “is to encourage employers to hire handicapped workers by
protecting such employers from the burden of increased compensation liability resulting
from the combination of preexisting impairments and industrial injuries.” Salt River
Project v. Indus. Comm’n, 172 Ariz. 477, 482, 837 P.2d 1212, 1217 (App. 1992). As the
Marshall Foundation points out, this consideration is absent when, as here, the employee
has no preexisting injury that would increase the employer’s risk of greater compensation
liability.
Disposition
¶9 Because Escobar’s arguments do not justify abrogating Hoosava for public
policy reasons or extending Rodgers to non-successive injuries to the same extremity, we
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affirm the ALJ’s award concluding Escobar’s injuries were scheduled. The Marshall
Foundation requests its attorney fees and costs on appeal pursuant to A.R.S. §§ 12-349,
12-350 and Rule 21, Ariz. R. Civ. App. P. Because we cannot say Escobar’s appeal was
brought without substantial justification, see § 12-349, we deny the request. As the
successful party, the Marshall Foundation is entitled to its costs of appeal, contingent
upon its compliance with Rule 21, Ariz. R. Civ. App. P., and Rule 4(g), Ariz. R. P. Spec.
Actions. The ALJ’s award is affirmed.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
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