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"

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