Petition — Sandoval v. Industrial Commission
Supreme Court brief1977
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Supreme Court, U. S.
SUPREME COURT CP THE onITSD states] APR291977
JANUARY TERI, 1977 SMCM. EL RODAK, JR., CLERK
we. %6-1507
AOSBERT S. SANDOVAL,
fetiticner ’
Ve
THE INKASTRIAL COMMISSICN OF ARIICNA,
Respondent,
SALT RIVER AWER DISTRICT,
Self-Ineurzexi Enployer,
c/o SHETT & ee
Respondent Srp!
PETITION FPO! A WRIT OF CERTIOPART
CALVIN <2. ‘THUR
7929 &. Third Avene,
Suite Che,
scottsdaic, A% &5251
Attomey for Petitioier
IN THE
SUPREME COURT OF THE UNITED STATES
JANUARY TERM, 1977
AUSBERT S. SANDOVAL,
Petitioner,
Ve
THE INDUSTRIAL CCMMISSION OF ARIZONA,
Respondent,
SALT RIVER POWER DISTRICT,
Self-Insured Employer,
c/o SWETT & CRAWFORD,
Respondent Employer
PETITION FOR A WRIT OF CERTIORARI
CALVIN C. THUR
7020 E. Third Avenue,
Suite One,
Scottsdale, AZ 85251
Attorney for Petitioner
Opinion |). RPPOTTTTTTTTTTTTTTTrrrrrirririrrTyT
PARE AERis 0 6000000000060 8000SCCC COSCO OSSOCS
Questions 5. ..- -PPPUTPTTEPTLITITTTTTTTTrTrTry
Constitutional Provisions Involved....ececeees
Statement GE Chm GaBcococccoceeceeeeooeeoceces
Reasons for Granting the eg | PPUTT TTT TTT TTT Te
1. A State Workmen's Compensation Procedure
2.
3.
Which Permits Unilateral and Retroactive
Suspension of Compensation Benefits With-
out Affording a Hearing For Almost Two
Years Violates Due Process and Hgual
Protection As Guaranteed By the United
States Constitution, Amendment XIV, § l..
The Delegation of Powers To the Defendant
Employer To Administer and Even Tb
Suspend A Disabled Employee's Compensa-
tion In Arizona is Obnoxious Tt All
Constitutional Guarantees of Due Process
and Equal Protection....ceccceccsvcsscess
Termination of a Disabled Employee's
Compensation Without Giving Required
Notice Until Over Four Months Later
Deprives the Employee of Due Process of
i" PPPTTITITITITITITiTriririirrreiereretereTiTereer
GCORINBERs 0 0c 00 00600000 006000 00606000 60000008
Page
13
13
20
22
22
la
ii Index Continued ; IN THE
Page ’ SUPREME COURT OF THE UNITED STATES
CITATIONS JANUARY TERM, 1977
Cases: paras
Carter v. Carter Coal Company, No.
298 U.S. 238, 56 S.Ct. 855,
80 L.Ed. 1160 (1936) eccccccccccccccscccccese 20
Concordia F. Insurance Co. v. AUSBERT S. SANDOVAL,
Illinois, 292 U.S. 535, 78 Petitioner,
LeEd. 1411, 54 S.Ct. 830. .cccccsccccccceeess 22
Ve
Dillard v. Industrial Commission
of Virginia, 416 U.S. 783, 40 THE INDUSTRIAL COMMISSION OF ARIZONA,
L.Ed.2d 540, 94 S.Ct. 2028 Respondent,
(1974) ccccccccccccccecees 15, 16, 18, 19, 20, 22
SALT RIVER POWER DISTRICT,
Goldberg v. Kelly, 397 U.S. 254, ; _ Self-Insured Enployer,
90 S.Ct. 2018, 25 L.Ed.2d c/o SWETT & CRAWFORD,
287 (1970) ccccccccccccccccccccccccece 14, 18, 22 Respondent Employer
Matthews v. Eldridge,
U.S. , 96 S.Ct. 893,
OF Gee BD Bi bcccccccecccecsces BM BM BD PETITION FOR A WRIT OF CERTIORARI
Mullane v. Central Hanover Bank
and Trust Co., 339 U.S. 306, —
70 S.Ct. 652, 94 L.Ed. 865 (1950)...eeeeeeee 22 The petitioner, Ausbert S. Sandoval, respectfully
Parsons v. Industrial Commission, requests that a Writ of Certioari issue to review
108 Ariz. 130, 493 P.2d 913 (1972)..eeeeeeee 6
the Order of the Supreme Court of Arizona entered
Robinson v. Hanrahan, 409 U.S.
Taylor v. Industrial Commission, Ausbert S. Sandoval's Petition for Review of the
20 Ariz.App. 46, 509 P.2d 1083 (1973)....... 6
Opinion of the Arizona Court of Appeals in this
Miscellaneous:
. proceeding.
16 AmJur2d, Constitutional
Law, §§ 0 a 22
2
OPINION BELOW
The Order of the Supreme Court of Arizona
denying Petition for Review is Supreme Court Order
No. 13020-PR. The Opinion of the Arizona Court of
Appeals, which the Arizona Supreme Court refused
to review, is reported at Ariz.App.__, 559
P.2d 688 (1976) and said report notes “Review
Denied" by the Supreme Court of Arizona.
JURISDICTION
On August 31, 1973, the Salt River Power District
terminated petitioner's Workmen's Compensation re-
troactively, and petitioner requested a hearing.
A hearing was held on June 3, 1975, before a
Hearing Officer, and on October 23, 1975 the
Industrial Commission issued its Findings and
Award. Following administrative review procedure,
petitioner appealed by Certiorari to the Arizona
Court of Appeals, which issued an Opinion on
December 9, 1976. A Motion for Rehearing filed
with the Court of Appeals was denied, and
petitioner thereafter made a timely Petition for
3
Review to the Supreme Court of Arizona, which was
denied on February 1, 1977, and this Petition for
Certiorari was filed within 90 days of that date.
This Court's jurisdiction is involved under 28
U.S.C. § 1257(3).
QUESTIONS PRESENTED
1. Whether an injured workman under a Workmen's
Compensation claim is denied due process and equal
protection when, pursuant to the Arizona Statutes
and administrative procedures of its Industrial
Commission, the employer, a party in the
proceedings, is permitted to unilaterally termin-
ate or suspend payment of benefits for more than
3-1/2 years by ex parte proceedings.
2. Whether retroactive payment of all benefits
which an injured employee will be entitled to
affords due process to the employee who has not
yet received the permanent compensation benefits
that he was admittedly entitled to more than 3-1/2
years ago.
3. Do the administrative procedures and forms
4
of the Arizona Industrial Commission violate due
process by permitting or requiring an employer to
terminate temporary compensation benefits, as a
prerequisite to a permanent award, by falsely
Stating in a Notice of Claim Status (which has res
judicata effect if not objected to) that the
injured employee “has returned to regular work
without wage loss due to injury."?
4. Does a Notice of Claim Status terminating or
suspending campensation, retroactively, first
served upon employee's attorney about four months
after termination violate due process?
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Constitution, Amendment XIV, § l:
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without
due process of law; nor deny to any person
within its jurisdiction the equal protection of
the laws."
5
STATEMENT OF THE CASE
Petitioner, Ausbert S. Sandoval, was seriously
injured when an electrical tower collapsed,
crushing his pelvic and abdaminal region, on
September 7, 1971, while in the employ of Salt
River Power District, a self-insured employer
under Arizona Workmen's Compensation Law. ‘he
case was accepted for benefits.
On August 31, 1973, the employer issued a Notice
of Claim Status through its claim representative,
Swett & Crawford, whereby camnpensation benefits
were terminated retroactively to August 8, 1973,
and medical benefits terminated retroactively to
August 24, 1973. Said Notice stated in part "[iJf
you are aggrieved by this notice, you may apply
for a hearing by filing a written application. .
- Within sixty days... ." Said Notice stated
specifically:
"Temporary compensation terminated on 8-8-73
because claimant has been released for, or
has returned to, regular work without wage
loss due to injury.” [See Appendix A-l.]
6
Said statement was canpletely false and was known
by Salt River Power District and by their
representative, Swett & Crawford, to be campletely
false.
Such a Notice under Arizona law becomes res
judicata if not objected to within 60 days.
Taylor _v. Industrial Commission, 20 Ariz.App. 46,
509 P.2d 1083 (1973); Parsons v. Industrial
Commission, 108 Ariz. 130, 493 P.2d 913 (1972).
The true reason for terminating temporary
compensation was becaue Sandoval's disability had
become stationary and compensation for permanent
campensation was due.
Joanne lutz, who had signed the Notice of Claim
Status for Swett & Crawford, admitted that there
was no basis in fact for the finding that Sandoval
was released for or had returned to regular work
without wage loss due to injury. Ms. lutz
testified at the hearing on June 3, 1975, as
follows:
"Q. Isn't it true that all of the reports that
you received from Dr. Brainard indicated
. | 7
E that he could not go back to regular work?
"A. Indicated light -- light duty, yes.
zxeee
"Q. Can you tell me if you have any evidence
whatsoever in your file that indicates
that Mr. Sandoval was released for or
returned to regular work without wage loss
due to injury?
"A. No, I have nothing in the files to say
that. .. ."
zeke
"Q. Isn't it true that at the time that you
had issued the Notice of August 31, 1973,
you were aware that Mr. Sandoval had in
fact a substantial loss in earning
capacity due to his injury?
"A. Our files reflected he did. He was losing
money, yeS. . . ."
(Reporter's Transcript at 14-17.]
Mr. Sandoval testified about his physical
condition and his ability to return to regular
work or earn a living as follows:
"Q. (By Mr. Thurl Can you explain to us what
those physical problems were that you wre
having in August of 1973?
"A. I was having a lot of pain in several
areas of the body where I got injured.
"0.
"A.
"A.
"0.
"A.
There was mainly nerve damage that. was
done.
What parts of the body were affected?
My leg, my hip, my knee, my shoulders, my
stomach right here across to the chest.
With regards to your stomach, what problem
were you having?
They cut some nerves out that once in a
While the nerve would go into spasms...
n
zsaeeek
And in August of 1973, what was your
condition, or can you describe exactly
what your problem was with your leg and
_ hip?
Well, it was very weak. The hip was very
weak. It's always under pain because of
the nerves or something happened to the
nerves there. It has always been under
pain.
zee*ee
In August of 1973, do you know what your
weight was at that time?
I think I was just about 102 — 105
pounds.
What was your normal weight before your in-
jury?
About 140.
"0.
"A.
"0.
"A.
"Q.
"A.
"0.
"A.
"0.
"A.
9
The abdominal surgery that they did on
you, I believe the record shows that had
something to do with your intestinal
trouble or your stomach area; is that
right?
Correct.
Did that affect your eating habits and
your dietary habits after that?
Yes, and it drastically changed every-
thing.
zeke
At any time in August of 1973, had you
returned to regular work without wage loss
due to injury?
No.
According to the records in the file, you
apparently had sustained a _ substantial
wage loss due to the injury, right?
Yes.
In August of 1973, did you feel that there
was anything further that the physicians
could do for you at that time?
I was hoping that they would do something.
{Reporter's Transcript at 38, line 20 through p.
40, line 24; and p. 41, lines 3-12.]
Swett & Crawford failed to send a copy of said
Notice of Claim Status to Sandoval's attorney.
10
When a copy of the Notice of August 31, 1973 was
finally sent by Swett & Crawford to said attorney
in January of 1974, Sandoval immediately, on
January 14, 1974 filed Objections to the said
Notice of Claim Status, and requested a hearing
thereon. The employer did not object to the
timeliness of the filing of the Objections and
Request for Hearing made by Sandoval on January
14, 1974 relative to the Notice dated August 31,
1973, because of their failure to give timely
notice to the Claimant's attorney. Before
requesting a hearing Sandoval asked the employer
to voluntarily correct the Notice, and employer's
attorney responded on January 7, 1974 by
suggesting that Sandoval "file a request for
hearing." [See Appendix A-2.]
Sandoval has not received his campensation
benefits from the defendant-employer fran August
of 1973 (more than 3-1/2 years), although he had
remained in a disabled condition, had suffered an
extensive wage loss as a result of the injuries
1 OTE S le
- —_——
ll
(determined to be a 77.92% reduction in earning
capacity); and had been unable to obtain medical
treatment because of the termination of his
1 He had a wife and an
compensation benefits.
8-month old baby girl to support at the time his
compensation was terminated. Eventually, on
October 23, 1975, the Hearing Officer for the
Industrial Commission of Arizona awarded Sandoval
an additional 16 days compensation through August
24, 1973, but in all other respects denied the
Claimant's Objections and Request for Relief fram
the erroneous and false Notice of Claim Status
issued on August 31, 1973. On Review, the Hearing
Officer affirmed his previous Decision and appeal
by Writ of Certioari was made to the Arizona Court
of Appeals and the constitutional questions herein
presented were raised. 2
—
i Se MA
.
“Note: At about the time the Employee's brief was
due in the Arizona Court of Appeals (March, 1976)
the Employer started making “voluntary payments"
but only equal to 25% of his lost earnings and
much less than Sandoval is entitled to.
2opinion attached at Appendix A-5.
12
The employer thereafter attempted to justify the
use of the false reason for terminating
compensation by claiming that it had to use the
forms provided by the Industrial Commission, and
that the forms did not indicate the true reason.
The Arizona Court of Appeals justified the false
reason for termination by stating:
"This form language was mandated for use by the
Commission pursuant to Rules 6 and 7, Rules of
Procedure for Workmen's Compensation hearings."
(559 P.2d at 690.)
The Court then concluded that Sandoval's
temporary benefits were "properly terminated” (559
P.2d at 691), and that the four month delay in
service of the Notice did not prejudice Sandoval's
due process rights (559 P.2d at 691).
The Court of Appeals held that the petitioner
had a “meaningful" opportunity to be heard after
the ex parte termination of temporary benefits
because he gets “full retroactive relief if he
ultimately prevails." The Arizona Supreme Court
denied review on February 1, 1977. On March 28,
1977, the Industrial Commission finally made that
13
award and held that Petitioner sustained a 77.92%
reduction in his monthly earning capacity and the
Commission's Award stated:
"Compensation for unscheduled permanent partial
disability under A.R.S. § 23-1044(c) and (d), in
the sum of $278.56 payable monthly, to continue
until death or further order or award of this
Commission, the first payment effective as of
August, 1973; . .. ." [See Appendix A-3.]
The retroactive compensation fram the date of
the award back to August, 1973 amounts to
approximately $13,800, less about $2,400 paid
"voluntarily" by employer since March, 1976, but
the petitioner has not yet received any
retroactive compensation under said Award because
the employer objected to the Award on April l,
1977 [Appendix A-4], and to date there has been no
hearing set.
REASONS FOR GRANTING THE WRIT
1. A State Workmen's Compensation Procedure
Which Permits Unilateral and Retroactive
Suspension of Compensation Benefits Without
Affording a Hearing For Almost ‘Two Years
Violates Due Process and Equal Protection As
Guaranteed By the United States Constitution,
Amendment XIV, § l.
Mr. Sandoval's right to Workmen's Compensation
14
vested when his case was accepted for benefits
shortly after the injury of September 7, 1971. He
had a vested right to such benefits, not only
under the Arizona Workmen's Compensation Act, but
also under the Arizona Constitution, Art. XVIII, §
8..
When a constitutionally protected right is
involved, due process requires strict adherence to
procedural safeguards for any state-implemented
procedure which impairs such right, or which
affects property or personal rights of citizens.
Under some circumstances, due process — the
State to afford an evidentiary hearing to an
interested party before discontinuing payment of
benefits. See: Goldberg v. Kelly, 397 U.S. 254,
90 S.Ct. 2018, 25 L.Ed.2d 287 (1970). Under other
circumstances, it has been held that where
stringent procedural safeguards exist, such as in
the Social Security Administration, that a prior
hearing before termination of benefits is not
always required. Matthews v. Eldridge, U.S.
15
__, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
~The Qpinion of the Arizona Court of Appeals is
contrary to the United States Supreme Court
guidelines set forth in Dillard v. Industrial
Commission of Virginia, 416 U.S. 783, 40 L.Ed.2d
540, 94 S.Ct. 2028 (1974).
In Dillard the majority decision expressed the
view that if, under state law, a claimant whose
Workmen's Compensation benefits were suspended may
have them promptly reinstated by a state trial
court pending a full administrative hearing on the
merits, it is in all probability unnecessary to
address any questions of federal constitutional
law. The majority in Dillard based the decision
upon the fact that, although under the Virginia
procedures, it is possible for an employer or
insurance carrier to terminate compensation, the
employee has a ready mechanism for immediate
reinstatement of benefits pending a full hearing,
and the fact that a full hearing in Virginia
normally follows suspension of benefits by a per=
16
iod of about one (1) month. ‘he Dillard Court
also emphasized the fact that in Virginia there
are additional procedural safeguards so that a
claimant could render suspension of benefits de
minimis. None of the procedural safeguards
mentioned in Dillard exist in Arizona, and the two
(2) year period which passed from the time the
employer issued the Notice of Claim Status, until
the hearing was finally completed, and the three
and one-half (3-1/2) years which has now passed
without payment of permanent benefits to which the
disabled employee is entitled, shows a constitu-
tionally significant injury under the procedures
used in Arizona.
The dissenting opinion in Dillard felt that even
with the right of immediate reinstatement of an
ex-parte , suspension of benefits, and with a
full hearing within one (1) month following the
Original suspension of benefits, there was a
violation of due process guarantees under the XIV
Amendment. The dissenting opinion stated:
17
mew state which places upon the worker
“burden © to court to redress a
te tion already occurred is simply
not in point. It places the burden of
sisiemacive Sction on t sompant of society
seat tatat could not
be leas qportune. As Judge Merhige said below
need not blind themselves
to what they = as men. I cannot help but
believe that _ the sustained working man in
an injury result
in @ substantial Solar of his Seek income,
and immediate loss... . the
eae oo 2 _ ar electri result in a pee
: ep
—
working his
Top fl
"The opportunity for working-class men and women
in that grave situation to enter state court and
do battle with the corporate employers and
insurers who have already terminated their
benefits without a hearing is no meaningful
solution to their problem."
(Emphasis ours. ]
The ex-parte proceedings under which Salt River
Power District was permitted to retroactively
suspend or terminate payment of benefits for more
than two years before the hearing was completed,
and Sandoval being without benefits now for more
than 3-1/2 years, clearly violate constitutional
18
guarantees. The majority in Dillard found that
the right to immediate reinstatement of benefits
pending a hearing and a hearing within about
thirty (30) days, was not obnoxious to constitutional
guarantees. In Arizona Sandoval had no right to
immediate reinstatement of benefits pending a
hearing, and it took about two years to get a
hearing.
The Arizona Court of Appeals, in its Opinion,
held that this Court's decision in Goldberg v.
Kelly, supra, “has been weakened by subsequent
United States Supreme Court Decisions," and
referred to Matthews v. Eldridge, supra, as an
example. It is submitted that the Arizona Court of
Appeals totally misconstrued and misapplied the
Matthews Decision. Under the stringent procedural
guidelines set forth in Matthews, there was a
clear violation of due process requirements and
deprivation of rights by the ex-parte, unilateral
and retroactive termination of campensation
benefits by Sandoval's employer.
19
The Arizona Court of Appeals further concluded
that Sandoval had a “meaningful” opportunity to be
heard after the ex-parte termination of temporary
benefits because he gets “full retroactive relief
if he ultimately prevails." Such a conclusion is
in direct conflict with both the majority and
dissenting opinions in Dillard when such a hearing
takes more than two years to complete, and more
than 3-1/2 years before an Award is finally made
(showing retroactive disability benefits to the
extent of $13,800 were due fram August, 1973 to
present). The fact that the employer has now
filed objections to the retroactive award and a
hearing has not yet been set on those objections
will again result in many months, and possibly
years, delay before the disabled employee and his
family finally receive the benefits to which they
were entitled during the past 3-1/2 (going on 4)
years.
The conclusions reached by the Arizona Court
that “while procedurally this determination may
20
result in the interruption of benefits, all
benefits which the claimant will be entitled to
under his permanent status are paid retroactively
to the date of termination of temporary benefits,"
does not correct the fact that *. . . the ex-parte
proceeding permitted . . . may result in cessation
of milk delivery, or electric power, or fuel to
the working man and his family . .. [during] a
time which could not be less opportune.” (416
U.S. 801.)
2. The Delegation of Powers to the Defendant-
Employer ‘To Administer and Even Td Suspend A
Disabled Employee's Compensation In Arizona
is Obnoxious Tb All Constitutional Guarantees
of Due Process and Bgual Protection.
The State's delegation of powers to the employer
to suspend or terminate the employee's compensa-
tion, delegates to a private party in the
proceeding the power to regulate the affairs of
it s adversary on the Workmen's Compensation
Claim. Such a delegation of governmental powers
was commented on in Carter v. Carter Coal Company,
298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936),
21
where the power to fix hours and wages of miners
was delegated to producers and miners, as follows:
"The power conferred upon the majority is, in
effect, the power to regulate the affairs of an
unwilling minority. .. . [I]n the very nature
of things, one person may not be entrusted with
the power to regulate the business of another,
and especially of a competitor."
Allowing one of the parties in a Workmen's
Compensation proceeding to make determinations and
decisions in which that party has a vested
monetary interest, and not allowing the employee
to make such decisions or determinations, violates
the constitutional mandate of equal protection and
due process. The possibility of arbitrary action
under a law, rule, or procedure, whether
occasioned by the express terms of a law, or by
its improper execution, or its effect in
Operation, violates due process. An actual dis-
crimination arising from the method of administer-
ing a law is as potent in creating a denial of
equality of rights as a discrimination made by the
law itself. ‘The validity of a State statute under
the equal protection clause thereof often depends
22
on how it is construed and applied. See:
Concordia F. Insurance Co. v. Illinois, 292 U.S.
535, 78 L.Ed. 1411, 54 S.Ct. 830; and 16 AmJur2d,
Constitutional Law, §§ 419-423.
3. Termination of A Disabled Employee's Compen-
Sation Without Giving Required Notice Until
Over Four Months Later, Deprives the Employee
of Due Process of Law.
A Notice of Claim Status is not effective until
properly served upon the employee. A four month
delay in service therefore precludes his right to
a hearing for an additional four months.
Retroactive application of determinations and
decisions which terminate compensation benefits
violate due process, as per Goldberg, Matthews,
and Dillard, all supra. See also: Mullane v.
Central Hanover Bank and Trust Co., 339 U.S. 306,
70 S.Ct. 652, 94 L.Ed. 865 (1950), and Robinson v.
Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47
(1972).
CONCLUS ION
For the reasons stated, a Writ of Certiorari
23
should issue to review the constitutionality of
the Arizona Statutes and procedures employed in
Workmen's Compensation cases, and the Judgment and
Opinion of the Arizona Court of Appeals on which
the Arizona Supreme Court denied review.
CALVIN C. THUR
7020 E. Third Avenue,
Suite One
Scottsdale, AZ 85251
Attorney for Petitioner
NOTICE OF CLAIM STATUS Geantors tame end Advent) 7
SALT RIVER PO“-TR H-7=71
r a DISTRICT Date Injured ay TA
‘eae }- : pon NG ooif-insur
P. ©. Box 19070 A "CENTRAL AVENUE pao “River Pow
P a PHOeMIX, ARIZONA 85012 District
And to:
Claimant by Certified Mail
“7
Mr. Ausbert Sandoval
3320 Ext Monte Victa
vhocnix, Arizona 65008
-
L (Cleiment’s Nome sad Addrest)
claim.
1. Accepted for benefits as accidental injury
2. ccanted for benefits 2s occupational disease calm.
3. (CJ Denied as both accident and occupational disease claims.
4. © Denied as accident claim.
5. ( Denied as occupational disease claim.
——covers through.
Enclosed check time lost, commencing.
oo wy dane have been deducted unless the disability has extended through 14 days. Payment has been
is Go came ce oe pased on the following: te A
A. ( Statutory minimum or estimated monthly wage pending determination of Average Monthly Wags
6.0 wege at time of injury or exposure (See attached caiculetion), subject to the final deter-
mination by The Industrial Commission of Arizona within 30 days. CURIE R EE
7. (© Amount of compensation changed to 65% of the eaten came ‘ore injury
, i lease for work, tive
raj Ten ~ mpd a ya Br = eng taigiete *! yn claimant has been released for, or hes returned
8. emporary
to, regular work without wage loss, dug, ta, ipiury.
9. Bj Medical benefits terminated on because:
7
10.
iment discharged with no permanent disability. x
. z pra ann @etuant with permanent disability. (Amount of permanent benefits, if any, will be given
subsequent notice).
co hs time was lost from work in excess of 7 days attributable to this injury or exposure.
bh ce: Pr. william Cc. Drainard
NOTICE TO CLAIMANT;
| if yew are
aggrieved by this notice, you may apply for 2 hearing by filing @ written application at any office of The Industriel Commissicn
of Arizona within sixty (60) days after the date of mailing of this notice.
| Phoenix Office: Industrial Commission of Arizona
form ICA 04010471 *
Tucson Office: Industrial Commission of Arizcne
721 North 4th Avenue, Sceond Flocr
1601 nay 4 setenen St. . ; ——%
Mail to: P. O. Box 19070
Phoenix, Arizona, 85005 (Avtherized Scqnavure)
this ferm approved by The lndvetriol Commission of Arizona for corvier wee}
a)
APPENDIX "A-1"
BEST COPY AVAILABLE
eeocele +2,
JOHN S. SCHAPER RIES “S cunsis
ATTORNEY AT LAW ke THUR
2602 FIRST FEDERAL SAVINGS BUILDING
3003 NORTH CENTRAL AVENUE
PHOENIX, ARIZONA 85012
Te.emnene 602/264-6808
yan 8 1974
January 7, 1974
Mr. Calvin C. Thur
Giles, Zielinski & Thur
7020 E. Third Avenue, Suite 1
Scottsdale, Arizona 85251
Re: Ausbert S. Sandoval
ICA No. 1/3-12-10
Dear Cal:
Following your call last week concerning the above matter, I
reviewed the insurance carrier's file.
If it is now your feeling that this claim was not properly
closed in August, I would suggest that you file a request for
hearing with the Industrial Commission. Since the notice was
apparently not sent to you when the case was closed, I would
probably raise no objections as to the timeliness of the
request-for hearing. However, there may be a number of
questions concerning the jurisdiction of the Commission while
this matter is pending in the Court of Appeals, as well as those
questions concerning Mr. Sandoval's need for medical treatment
after August 14, 1973.
Would you please provide me with a copy of any documents you
may file with the Commission. .
Very truly yours,
X
Jo
S. Schaper
JSS:jg
APPENDIX "A-2"
BEFORE THE INDUSTRIAL COMMISSION OF ARIZONA : AUSBERT 8. SANDOVAL
1/3-12-10
P. O. BOX 19070
PHOENIX, ARIZONA 85005
6. That in determining that applicant has a reduced monthly earning capacity
as a result of injury by accident, this Commission has given full consideration
. <= to each of the matters set forth in A.R.S., Section 23-1044, D, and full
; 13012-20 consideration to all other facts and circumstances pertaining to this case.
1/3-12- —_
~ amsneRT S. SANDOVAL - — . - 7. That the aforesaid determination is based on the following facts:
Appkcant, . SP 71-1
No.
Gute Gute (a) That applicant is presently 35 years of age.
_ ” ) FINDINGS AND AWARD FOR (b) That applicant has completed 14 years of formal education. :
) o - (c) That applicant is unable to return to his former employment as a result
UNSCHEDULED PERMANENT :
SALT RIVER PROJECT )
: : of his injury.
— eee nen Exo) | (4) That medical limitations would not preclude applicant from performing
} PARTIAL DISABILITY the duties of a small appliance repair/light handyman or comparable
) work and in accordance with the pay scale in effect at time of injury
SALT RIVER yo ' Under the Provisions of @arn an average of $194.99 a month, thereby sustaining the above-stated
ee EN ietandant tnsrance Cara) Aine — - loss of earning capacity.
) 2), an e
: + AWAED
Upon and
On October 23, 1975, this Commission issued ae 0 ees by, Award is hereby made payable to said applicant by the above-named defendant
Findings and Award For _—" Disability insurance carrier as follows:
REVIEW on February 10, 1976.
el. filed Petition of Writ of Certiorari. 1. Compensation for unscheduled permanent partial disability under A.R.S.,
Thereafter, the applicant, through couns 21 State of Arizona, Division One, _ Section 23-1044, C & D, in the sum of $378.56 payable monthly, to continue until
After due consideration, the Court of Appeals, death or further order or award of this Commission, the first payment effective
affirmed the afore-mentioned award by MANDATE « as of August 1973; deducting any amounts advanced under the provisions of Form
° ICA-0107 issued August 31, 1973.
ds and all evidence here | Shy
Commi having fully condidered the file, recor ;
tk pe to = makes its Findings and Award For Unscheduled Permanent °
Partial Disability as follows:
—™- -*
FINDINGS
cident TT IS ORDERED that the Coumission retains jurisdiction of all compensation
1. That the above-named applicant a mans po ca 7, 1971. cases for the purpose of altering, amending or rescinding its findings and
arising out of and in the course of his employmen award on the motion of either the workman, the insurer, or the employer, (1)
24, 1973. upon showing a change in the physical conditicn of the workman subsequent
2. That applicant's physical condition became stationary on August <%, to said findings and award arising out of said injury resulting ia the reduction
_ dm the earning capacity; (2) upon showing of a reductiom in the earning capacit
thro 8 cap y
3. That applicant is entitled to accident benefits (medical expenses) > of the workman arising out of said injury wherethere is no change in his
August 24, 1973. physical condition, subsequent to findings and award; (3) upon a showing that
ctnde thet said applicant hes sustsine 4 a 20% general his earning capacity has increased subsequent to said findings and award.
' & That the Commission s tha t of
physical functional disability as a result of said injury by ancteuns © TT IS FURTHER ORDERED that the applicant shall, while receiving permanent
September 7, 1971. compensation benefits, report on the anniversary date of this award to this
licant has sustained a 77.92% reduction in his monthly earning Commission, all of his earnings for the prior twelve month period.
5. That the applican . ;
apac -56 per month until death or further
ty, entitling him to the sum of $378.5 a
SS oe om of The Industrial Commission of Arizona pursuant to the pro
visions of A.R.S., Section 23-1044, or other applicable law.
APPENDIX “A-3"
FORM ICA 04-0661-73 . °
AUSBERT S. SANDOVAL
1/3-12-10
IT IS FURTHER ORDERED if you do not agree with this award, and wish a hearing
on the matter, your written Request For Hearing must be received in either
office of The Industrial Commission of Arizona within SIXTY (60) DAYS after
the mailing of this award, pursuant to A.R.S., Section 23-941 and 23-947.
IF NOT SUCH APPLICATION IS RECEIVED WITHIN THAT SIXTY DAY PERIOD, THIS AWARD
IS FINAL.
THE INDUSTRIAL COMMISSION OF ARIZONA
Signature authorized pursuant to
Commission Resolution AeR.S. 23-108.03
Dated at Phoenix, Arizona,
Zneck PL 927
* Form ICA 04-0446~74
BEFORE THE INDUSTRIAL COMMISSION OF ARIZONA
“IMPORTANT — Read information on reverse side before completing this Request. This Request must be completed in detail and
additions! pages may be used if necessary.
AUSBERT S. SANDOVAL
REQUEST FOR HEARING
vi
pv aa . ins. Carrier Claim No. SP 71-185
————_ —L_ ———————————£—=E—£X_{_[—LEE—— SS _
comes Now __the self-insured defendant employer ees
Party Requesting Hearing)
| and pursuant to A.RS. Section 23-941 and in accordence with Pules 35, 36, 41, 47 and 55 of the Rules of Procedure Before The
Industrial Commission of Arizona, the texts of which appear on the reverse hereof, requests a hearing on the: (Check appropriate
box)
( >) Notice of Claim Stetus ised by the
. _ oF ‘
{ x) Notice, Award, Order or Decision entered by The Industriel Commission of Arizona,
on March 28 _ 19_77__, which is arbitrary, unjust, unlawful and not supported by the evidence for the following
reasons: (State in detail why you feel you are aggrieved)
The applicant has not sustained f ea
to the extent as set forth in the Findings and Award for Unscheduled .
~Permanent Partial Disability entered by the Industrial Commission of Arizona
on March 28, 1977.
eee ee ee _— —— -
—_——
Hearing request 4 at city of tow of ___Phoenix ___ Estimated length of time for hearing LZ2_ day
Number of witnesses 3 7
Pursuant to Rule 35, the party hereby requests that subpoenas be issued to the following witnesses:
(a) Names of witnesses to be subpoenaed will be supplied subsequently.
, "(Named (Addresa) :
(b) /
i (Nemed a
Addrow)
(Marne) (Addr esa)
conti on hn rag of he Roun fer Marin pi econ alain taccacaaiia
~ John S. Schaper
ay__)-f, _
eb, aa Py ttorney for self-insi
Puss Deom Ase.
IMPORTANT —— Read information on reverse side before completing this Request for Hearing This Request for H
. . must bi
completed in detail and filed at an office of The Industrial Commission of Arizona. _
APPENDIX “A-4"
DATED the VA ——__ day of
copy of the for
Calvin C.Thur
THUR, PRESTON HUNGERFORD
7020 E. 3rd Ave., Suite 1
Scottsdale, AZ 85251
Appendix A-5
OPINION OF THE
COURT OF APPEALS OF ARIZONA,
Division l,
Department C.
As Reported in 559 P.2d 688 (1976)
Ausbert S. SANDOVAL, Petitioner,
Vv.
The INDUSTRIAL COMMISSION of
Arizona, Respondent,
Salt River Power District,
Respondent Employer,
Salt River Power District,
Respondent Carrier.
No. 1 CA-IC 1498.
Court of Appeals of Arizona,
Division l,
Department C.
Decided Dec. 9, 1976.
Rehearing Denied Jan. 12, 1977.
Review denied Feb. 1, 1977.
Claimant sought a writ of certiorari to review
POM I oe
ii Appendix A-5
the lawfulness of an award of the Industrial
Commission, Claim No. 1/3-12-10, which found that
his condition had passed fram a temporary to a
permanent status. ‘The Court of Appeals, Jacobson,
Acting P. J., held that the notice of claim status
was not void because the form contained printed
language which stated that the employee “has
returned to regular work without wage loss due to
injury," which inaccurately described the claim-
ant's actual situation; that the Industrial
Commission's determination that the claimant's
condition was stationary was supported by sufficient
evidence; that the notice of claim status was not
void because of a four-month delay betwen its
issuance and its receipt by the claimant's
attorney; nd that no due process hearing was
required prior to determination by the employer or
its carrier that the claimant's condition had
passed fran a temporary ic a permanent status,
where the claimant was given an opportunity to
adequately contest that determination.
iii Appendix A-5
Affirmed.
1. Workmen’s Compensation [Key No.] 2021
Notice of claim status sent by employer to
Claimant was not invalid because form contained
printed language which stated that claimant "has
returned to regular work without wage loss due to
injury," which inaccurately described claimant's
actual situation. |
2. Workmen's Compensation [Key No.] 230
Workmen's compensation benefits can be provi-
ded only if claimant is properly within coverage
of statute. A.R.S. § 23-1021.
3. Workmen's Compensation [Key No.] 2003
Injured workman's condition becomes stationary
when it has reached relatively stable status so
that nothing further in way of medical treatment
is indicated to improve that condition.
4. Workmen's Compensation [Key No.] 2030
Industrial Commission's determination that
claimant's condition was stationary and that his
right to temporary compensation and medical
iv Appendix A-5
benefits was properly terminated was supported by
sufficient evidence.
5. Workmen's Compensation [Key No.] 2021
Notice of claim status sent to workmen's
compensation claimant was not void because of
four-month delay between its issuance and its
receipt by claimant's attorney, but delay in
service merely provided legal excuse for not
timely filing request for hearing.
6. Workmen's Compensation [Key No.] 2039
No due process hearing was required prior to
determination by employer or its carrier that
workmen's compensation claimant's condition had
passed from temporary to permanent status, where
claimant was given opportunity to adequately
contest that determination. U.S.C.A.Const.
Amends. 5, 14; A.R.S. §§ 23-1044, 23-1047.
7. Workmen's Compensation [Key No.] 1990
Only Industrial Commission, not carrier or
employer, has right to terminate permanent
benefits.
V Appendix A-5
Thur, Preston & f&Hungerford by Calvin C. Thur,
Scottsdale, for petitioner.
John H. Budd, Jr., Chief Counsel, The Industrial
Commission of Arizona, Phoenix, for respondent.
John S. Schaper, Phoenix, for respondent
employer and carrier.
OPINION
JACOBSON, ACTING Presiding Judge.
On review of this Workmen's Compensation award
several issues are presented: (1) Is the Notice
of Claim Status void because the form contained
printed language which stated that the employee
"has returned to regular work without wage loss
1
due to injury" which inaccurately described the
claimant's actual situation? (2) Is the Indus-
trial Commission's determination that the peti-
tioner's condition was stationary in August, 1973,
this form, Industrial Commission of Arizona (ICA)
form No. 04-0104-71 is no longer used by the
Commission, and the language to which the
petitioner objects does not appear in the form
currently used by the Commission.
vi Appendix A-5
supported by the evidence? (3) Is the Notice of
Claim Status void because of a four month delay
between its issuance and its receipt by the
petitioner's attorney? (4) Was the petitioner
deprived of due process by the unilateral
termination of temporary benefits by the self-
insurer's insurance carrier?
As a prelude to an examination of these issues
it will be illuminating to review the relevant
procedural framework. Petitioner, Ausbert S.
Sandoval, sustained an injury on September 7, 1971
while in the employ of the self-insurer respondent
employer, Salt River Power District. Petitioner's
claim was accepted for Workmen's Compensation
benefits with a calculation of Average Monthly
Wage approved by the Industrial Commission on
November 15, 1971, and payment of benefits
commenced as of the date of the injury. By Notice
of Claim Status issued August 9, 1972, the
respondent employer terminated both temporary
compensation benefits, effective July 23, 1972,
vii Appendix A-5
and medical benefits, effective August 4, 1972. A
timely Request for Hearing on this issue was filed
and a hearing ensued on December 4, 1972. On this
date, the parties, by stipulation, agreed that the
petitioner was entitled to remain on temporary
disability status from July 23, 1972 until the
date his condition became stationary. A Decision
of the Hearing Office ratified this agreement.
On January 24, 1973, petitioner filed an
Objection to the Determination of Average Monthly
Wage and requested a hearing on this issue. On
June ll, 1973, a hearing was conducted and the
decision rendered August 6, 1973 dismissed the
Request for Hearing and the objections to the
determination of Average Monthly Wage. Following
post-decision procedures, the petitioner sought
review of this decision by the Court of Appeals
and this court, by memorandum decision (1 CA-IC
1044, filed December 3, 1974), affirmed the
decision of the Industrial Commission. Prior to
the petitioner's seeking the above-mentioned review,
viii Appendix A-5
the respondent employer on August 31, 1973, issued
a Notice of Claim Status terminating both
temporary compensation benefits, effective August
8, 1973, and medical benefits, effective August
24, 1973. Concurrently, with that notice the
employer advised the Commission that the peti-
tioner had suffered a permanent disability, and a
request was directed to the Commission to
determine permanent benefits, pursuant to A.R.S. §
23-1047. However, a copy of the August 31, 1973
Notice of Claim Status was not received by the
petitioner's attorney until January, 1974.
January 15, 1974, the petitioner filed Objections
to this Notice of Claim Status and requested a
hearing. The Commission declined to institute
action on either the Request for Hearing or the
request for determination of permanent partial
disability benefits, being of the opinion that it
lacked jurisdiction while an appeal was pending in
the Court of Appeals. On April 16, 1974, this
court issued its opinion in Castillo v. Industrial
ix Appendix A-5
Commission, 21 Ariz.App. 465, 520 P.2d 1142
(1974), specifically determining that the Commis-
sion could exercise jurisdiction in a matter
pending before the court in circumstances factu-
ally similar to the instant case.
Following the Court of Appeals memorandum
decision which affirmed the hearing officer's
decision on the determination of Average Monthly
Wage, the petitioner instituted an action on April
14, 1975 in Maricopa County Superior Court
asserting an assortment of claims against the
respondent employer and Swett and Crawford, the
managing agent for the self-insured respondent
employer. On October 24, 1975 judgment was
entered adversely to the petitioner and this
judgment is the subject of a separate civil appeal
currently pending before this court.
On June 3, 1975 a hearing was conducted pursuant
to the ovetitioner's request of January 15, 1974
objecting to the August 31, 1973 Notice of Claim
Status. On October 23, 1975 the hearing officer
x Appendix A-5
found that the petitioner's condition became
medically stationary on August 24, 1973; that the
August 31, 1973 Notice of Claim Status was
correct; that it was fully supported by the
evidence, and denied all the petitioner's
objections to this Notice of Claim Status.
Following administrative review procedures which
affirmed the decision of the hearing officer, the
instant review by certiorari was lodged.
{1] Petitioner first contends that the Notice
of Claim Status which stated that the employee
"has returned to regular work without wage loss
due to injury"” was knowingly false and
therefore void. We are somewhat at a loss to yr-
derstand what petitioner contends is the effect of
that voidness, since he requested a hearing as to
that Notice of Claim status, which has the effect
of suspending its operation and put in issue the
subject of the notice--in this case whether
*mis form language was mandated for use by the
Commission pursuant to Rules 6 and 7, Rules of
Procedure for Workmen's Compensation hearings.
xi Appendix A-5
petitioner's condition had passed from a temporary
State into ome of permanency. Massie v.
Industrial Commission, 113 Ariz. 101, 546 P.2d
1132 (1976). If his contention is-that the
employer must continue the employee on a temporary
Status until a "proper" Notice of Claim Status is
issued, he is mistaken. It is important to note
at this point that there is no contention that
petitioner was misled by this notice which
operated to deprive him of any procedural rights.
[2-4] It is also crucial to note that a
claimant's entitlement to benefits for industrial
injuries flows fram the statutory scheme as
provided in our Workmen's Compensation Act.
Danner v. Industrial Commission, 54 Ariz. 275, 95
P.2d 53 (1939). In particular, A.R.S. § 23-1021
details the benefits to which an injured
industrial worker is entitled and these benefits
can be provided only if a claimant is properly
within the coverage of the statute. Danner,
Supra; Lewis v. Industrial Commission, 2 Ariz.App.
Co GOED IL OOPS
.
POLL CORSE ROIS oer
xii Appendix A-5
522, 410 P.2d 144 (1966). Accordingly, any rights
which the claimant may possess as to benefits
spring fram the statute and not fran the language
contained in or amitted from a particular form
which was provided by the Commission. ‘The issue
thus devolves into whether the petitioner was
entitled to temporary disability benefits after
August 24, 1973 or whether his condition had
become stationary thus’ precluding temporary
disability benefits but entitling him to permanent
benefits. The principle is well established in
workmen's compensation proceedings that an injured
workman's condition becomes stationary when it has
reached a relatively stable status so that nothing
further in the way of medical treatment is
indicated to improve that condition. Home
Insurance Co. v. Industrial Commission, 23
Ariz.App. 90, 530 P.2d 1123 (1975). ‘he record
provides medical testimony as to the stationary
nature of petitioner's status as follows:
{testimony of Dr. William C. Brainard]
xiii Appendix A-5
"QO. I want to clarify when it was that you
felt he [claimant Sandoval] had reached a
position where no further orthopedic
treatment would be indicated. Is that as
of August 8, 1973?
"A. That's the first time I noted that.
zaeeneneret
"Q. In other words, he was in as stable and
stationary from the standpoint of his
underlying physical condition that you
felt he would be?
"A Other than just supportive care for his
pain.
zaeaenkenert
"A. That's true, but there comes a point in
time when one must say that even if there
are undulations in the amount of pain and
discomfort that it still has to be
considered a stationary condition."
Based upon this exchange and our review of the
record we are able to say that the petitioner's
right to temporary compensation and medical
benefits was properly terminated by the Notice of
Claim Status issued August 24, 1973 upon
petitioner's achieving a stationary status.
[5] Petitioner next contends that a four month
delay between the issuance of the Notice of Claim
xiv Appendix A-5
Status and the date it was served upon the
petitioner's attorney voided the Notice of Claim
Status and deprived the petitioner of his due
process of law.
In our opinion, the delay in service does not
void the Notice of Claim Status, but merely
provides a legal excuse for not timely filing a
Request for Hearing. See MRF Construction Co. v.
Industrial Commission, 1ll Ariz. 466, 532 P.2d 528
(1975); Sill v. Industrial Commission, 12
Ariz.App. 6, 467 P.2d 81 (1970). However, the
untimeliness of the filing of the Request for
Hearing on this delayed Notice of Claim Status was
not raised by the respondent employer and
petitioner subsequently was granted a hearing
pursuant to his request and was provided a full
opportunity to present the merits of his claim.
Contrary to petitioner's assertion, the due
process requirements of Mullane v. Central Hanover
Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94
L.Ed. 865 (1950) have been complied with in the
xv Appendix A-5
instant circumstances. Mullane requires notice
reasonably calculated to apprise interested
parties of the pendency of the action and to
afford the opportunity to present objections, and
not necessarily an adherence to a mechanistic
procedural scheme. Herein, the issue of untimely
filing of the Request for Hearing having not been
raised, and the subsequent opportunity to present
objections having been provided, we are unable to
say that the delay in service upon the
petitioner's attorney of the Notice of Claim
Status prejudiced the petitioner's due process
rights.
{6] Lastly, the petitioner argues that the
unilateral termination of temporary benefits by
the self-insured respondent employer's insurance
carrier deprived him of his constitutional right
to due process of law. Procedural due process
imposes constraints on governmental decisions
which deprive individuals of “liberty” or
"property" interests within the meaning of the due
xvi Appendix A-5
process clause of the fifth or fourteenth
amendments to the United States Constitution.
Assuming that the interest of the petitioner in
the continued receipt of his temporary compensation
benefits under the Workmen's Compensation Act is a
Statutory “property” interest properly protected
by the United States Constitution, the Supreme
Court of the United States has consistently held
that some form of hearing is required before an
individual is finally deprived of a property
interest. Wolff v. McDonnell, 418 U.S. 539,
(1974); see, e. g., Phillips v. Commissioner of
Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct.
608, 611-612, 75 L.Ed. 1289 (1931). However, the
fundamental requirement of due process is an
Opportunity to be heard "at a meaningful time and
in a meaningful manner." Armstrong v. Manzo, 380
U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62
(1965). Here, the Notice of Claim Status which
terminated temporary compensation benefits was
xvii Appendix A-5
objected to by the petitioner and a full
evidentiary hearing concerning these objections
was conducted on June 3, 1975. As a result of
this hearing, the hearing officer found that the
petitioner's condition became medically stationary
on August 24, 1973; that the Notice of Claim
Status was correct, and that the Notice of Claim
Status which terminated temporary compensation
benefits was fully supported by the evidence.
Since the petitioner was accorded an opportunity
to be heard "meaningfully" in a full evidentiary
hearing before final termination of temporary
compensation benefits we are unable to say that
the procedure utilized constituted a deprivation
of due process of law.
Since a recipient whose benefits are terminated
by the Notice of Claim Status is awarded full
retroactive relief if he ultimately prevails his
sole interest is in the uninterrupted receipt of
this source of income pending final administrative
decision on his claim. In this regard, the
xviii Appendix A-5
petitioner contends his potential injury is
similar to that of the welfare recipient in
Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970) which required a due process
hearing prior to interruption of benefits. In our
opinion, the effect of Goldberg in this area has
been weakened by subsequent United States Supreme
Court decisions. See Note, Specifying the
Procedures Required by Due Process: Toward Limits
on the Use of Interest Balancing, 88 Harv.L. Rev.
1510 (1975). Thus, in the recent decision of
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,
47 L.Ed.2d 18 (1976), the court concluded that due
process does not require an evidentiary hearing be
conducted prior to the termination of social
security disability benefits.
{7} In any event, the cessation of temporary
benefits may or may not have the effect of
terminating compensation. Rather, this determina-
tion is merely a shift under the statutory scheme
from benefits to which the claimant is entitled
xix Appendix A-5
while his condition is temporary to benefits he
may be entitled to when his condition becomes
permanent. While procedurally this determination
may result in the interruption of benefits, all
benefits which the claimant will be entitled to
under his permanent status are paid retroactively
to the date of termination of temporary benefits.
See, A.R.S. §§ 23-1044 and 23-1047. ly the
Commission, not the carri2r or the employer, has
the right to terminate pemzanent benefits. Harbor
Insurance Co. v. Industrial Commission, 24 Ariz.
App. 197, 537 P.2d 34 (1975). It is to be noted
that simultaneously with the Notice of Claim
Status terminating temporary benefits, the employ-
er requested the Commission to determine petition-
er's permanent benefits. That the Commission has
not done so can be laid directly to the pursuit by
the petitioner of reviews to this court.
In short, we find no due process hearing is
required prior to a determination by the employer
or its carrier that a claimant's condition has
xx Appendix A-5
passed from a temporary to a permanent status,
provided the claimant is given an opportunity to
adequately contest that determination.
The award of the Industrial Commission is
affirmed.
HAIRE, C.J. and SCHROEDER, J., concur.
8 SUPREME COURT
STATE OF ARIZONA
PHOENIX
AUSBERT S. SANDOVAL,
Petitioner, February 2, 1977
vs.
THE INDUSTRIAL COMMISSION
OF ARIZONA,
Supreme Court
No. 1 CA-IC 1498
Respondent,
SALT RIVER POWER Industrial Commission
DISTRICT, No. 1/3-12-10
Respondent
Employer,
a
SALT RIVER POWER
. DISTRICT,
Respondent
Carrier.
a ee ed
The following action was taken by the Supreme
Court of the State of Arizona on February 1, 1977 in
regard to the above-entitled cause:
"ORDERED: Petition for Review = DENIED."
Record returned to the Court of Appeals,
Division One, Phoenix, this 2nd day ofFebruary, 1977.
CLIFFORD H. WARD, Clerk
By /s/ Mary Ann Hopkins
4 Deputy Clerk
APPENDIX "A-6"
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.