Opposition Brief — Morales v. Industrial Commission

an

—~ Ka Supreme Court, U.S.

4 won kt & D

APR 29 1996

October Term, 1995

ARTURO MORALES, Petitioner

v.

INDUSTRIAL COMMISSION OF ARIZONA,

HIDRO GAS,

RELIANCE INSURANCE COMPANY,

Respondents

On Petition for Writ of Certiorari

To The Supreme Court of Arizona

BRIEF IN OPPOSITION

R. Todd Lundmark

Counsel of Record

Long, Lundmark & Poppe,

P.A.

3225 N. Central Avenue

Suite 1617

Phoenix, Arizona 85012

(602) 279-9777

Toby Zimbalist

1229 E. Briarwood Terrace

Phoenix, Arizona 85048

(602) 460-4882

Counsel for Respondents

QUESTION PRESENTED FOR REVIEW

Whether the Arizona legislature’s 1980 amendment

of Arizona Revised Statute (A.R.S.) § 1061(A), strictly

limiting the circumstances under which the untimeliness of

a workers’ compensation claim may be _ excused,

impermissibly denied procedural due process to the

petitioner, Arturo Morales.

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... i

py.) P96 Pee vy c. 5 > ii

TABLE OF CASES AND AUTHORITIES ....... ill

8 8 ey 6: ]

BE et NO, 1

STATEMENT OF THE CASE ................ 2

I. FACTUAL BACKGROUND ............... 2

Il. PROCEDURAL BACKGROUND ........... 4

REASONS TO DENY THE WRIT ............. 6

De ceuceucee 6

II. ARIZONA’S STATUTE GOVERNING

THE TIMELINESS OF CLAIMS DOES

NOT IMPLICATE THE DUE PROCESS

CLAUSE EITHER IN WHAT THE

STATUTE PROVIDES OR IN WHAT IT

te oa a cla g oa cue diene aéac 9

III.

IV.

CONCLUSION

iil

MORALES’S PETITION DEROGATES

THE PRINCIPLES OF DUE PROCESS

THAT UNDERLIE THE CASE LAW

CONSTRUING THE LHWCA AS WELL

AS THE CHALLENGED PROVISIONS

OF ARIZONA’S WORKERS’

4

COMPENSATION ACT nc cncscuseusess 15

MORALES’S PETITION DEROGATES

THE SEPARATION OF POWERS

DOCTRINE THAT UNDERLIES THE

CASE LAW CONSTRUING THE

LHWCA AS WELL AS THE

CHALLENGED PROVISIONS OF

pM res fy 5 |: aera rere 18

THE UNTIMELINESS OF MORALES’S

CLAIM IS CAUSALLY UNRELATED

TO ANY PROVISIONS OF OR

OMISSIONS IN ARIZONA’S ACT OR

TO HIS EMPLOYER’S FAILURE TO

COMPLY WITH THE ACT’S

REPORTING REQUIREMENT ......... 23

IV

TABLE OF CITED AUTHORITIES

Cases

Allen v. Industrial Commission,

733 P.2d 290, 294-95 (Ariz. 1987) ............ 9, 10

é

©

Associated Indemnity Corp. v. Pillsbury,

147 F.2d 546, 546 (9th Cir. 1945) ........... 13, 19

Ayers v. Parker,

15 F. Supp. 447, 448 (D. Md. | eae eee cee 11

Bonilla v. Rodriguez,

635 F. Supp. 148, 153 aw me MR: oo 650 es 16

Breath v. Cronvich,

729 F2.d 1006, 1011 (Sth Cir.) cert denied,

sc ee. | | ir 15

Bunker v. National Gypsum Co.,

441 N.E.2d 8, 11 (Ind. 1982) cert. dismissed,

WOR UD. TEND oko oko vas 22

Campbell v. Chatwin,

428 P26 208 Chale BOON ooo sc. oe 7, 8

Chase Securities Corp. v. Donaldson,

325 U.S. 304, 313-16 (1945) .................. 19

Page

Dandridge v. Williams,

Bt UR Gra ee en kines Se eGraieeae ess 18

Das v. Department of Health & Human Services,

17 F350 1250, 3256 Ces Ga SO gs ok se sein o's 18

Del’s Big Saver Foods v. enter

Cook, Inc.

795 F.2d 1344, 1350 (7th Cir, 1986) 2. sc e's 18

DeRousse v. PPG Industries

S96 S.W.28 306 Calo. TR id i SS 14, 20

Desselle v. Liberty Mutual Insurance Co.,

482 So.2d 1009, 1012 (La. Ct. App. 1986) ........ 23

Eaton v. Bath Iron Works

St A238 TOS Bree 663 OV RASS 24

Erwin v. City of Santa Fe,

599, 855 P.2d 1060, 1063 (N.M. Ct. App. 1993) .... 15

Gaston v. Taylor,

946 F.2d 340, 342 (4th Cir. 1991) .............. 16

Hartford Fire Insurance Co, v. Lawrence

Dykes, Goodenberger, Bower & Clancy,

TO) P28 1562 CRD CA II 6 os asks oe eae os 15

In re Medaglia,

ae Fe Sak, Gee Gs AIP nc be eee eae ces 17

vi

Kremer vy. Chemical Construction Corp.,

456 U.S. 461, 483 (1982) ...........008.

Lassiter v. Department of Social Services,

O54 15S: 1, SATION i 04. Ss ees

Logan v. Zimmerman Brush Co..,

455 US Ga ie rk ss eS vss

Moreau v. Federal Energy Regulatory

Commission,

982 F.2d 556, 569 (D.C. Cir. 1993) ........

Newman v. Burgin,

930 F.2d 955, 961 (ist Cir. 1991) .........

Pierce v. Hobart Corp.,

ISP Fs E09 (GAs, 1991) 2. sewn

Ponce Paramedical college v. United States

Department of Education,

858 F. Supp. 303, 314 (D.P.R. 1994) .......

Rouse v. Scottsdale Unified School

District,

752 P.2d 22 (Ariz. Ct. App. 1987)

rev. denied (1988) ....... rere reryT (x

Ruth v. Industrial Commission,

490 P.2d 828, 830 (Ariz. 1971) ...........

Vil

Page

Stephens v. Industrial Commission,

559 P.2d 212, 214 (Ariz. Ct. App. 1979) .......... 6

Thomas V, Devries,

834 F. Supp. 398 (M.D. Ga. 1993) aff'd,

oe) Oe ee Fk |. rere eee rere 15

Tulsa Professional Collections Services v

v. Pope,

Re 5 Bie CU cds Mare ckasen cies 17

United States v. Conner,

715 F. Supp. 1327 (W.D.N.C. 1989) ............ 15

Van Horn v, Industrial Commission,

Set Fie Bly A RI TITS) ccc cceveneesvees Y

William Danzer . Vv. Gulf R. Co.

poe GL.) SE Oe rare era 13

Young v. Hoage,

Se Be are Cen GE BI ood 6 ae So SENS ees 12

Statutes

A.R.S. § 23-908(F) & (H) (1995) .......... 1, 10, 23

Pe Eh aracdak ba Nine ate eo 40 ed eee 10

A.RS. § 1061(A) .......... i, 4, 9, 10, 11, 15, 16, 22

Ata & Pete ss os RRS A see iptaedacaee sy)

Mo. Rev. Stat. § 287.380.4 (1978) .........00ee. 20

Vill

Miscellaneous Authorities

Longshore and Harbor Workers’ Compensation

Act, 33 US.CA. $§ 901 ef seg... 2... ecco cee 1]

i 5 dW. 5 a 0.co pe a 0.0:0.0 ise. oo 12

ee RR EE hn oo vo kw oo seo $0 6 ones 13

100 C.J.S. Workmen’s Compensation § 475....... 14

]

BRIEF IN OPPOSITION

The respondent employer and insurance carrier,

Hidro Gas and Reliance Insurance Company respectively,

on their own behalf and that of the Industrial Commission

of Arizona, respectfully request this Court to deny the

petition for writ of certiorari filed by Arturo Morales, the

petitioner.

Relevant Statutes

In addition to the constitutional and statutory

provisions quoted by the petitioner, the following

subsections of A.R.S. § 23-908 are relevant:

F. Within ten days after receiving

notice of an accident, the employer shall

inform his insurance carrier and the

commission on such forms and in such

manner as may be prescribed by the

commission.

H. Any person failing or refusing to

comply with the provisions of this section is

guilty of a petty offense.

ARS. § 23-908(F) & (H) (1995).

i

:

I. Fac Back nd

Morales was injured on July 18, 1990 when he lost

control of the truck and semi-trailer he was driving and

rolled off the interstate highway near Gila Bend, Arizona.

He was en route from Tijuana, Mexico to Peoria, Arizona,

where he was to pick up a load of propane fuel and return

it to Tijuana for the respondent employer, Hidro Gas.

Hidro Gas is a Mexican corporation with an office

in E] Paso, Texas. Morales himself is a Mexican citizen

and a resident of Juarez in the state of Chihuahua.

Although it is undisputed that he was hired by Hidro Gas

in 1983, there is contradictory evidence as to whether he

was hired in Texas or Mexico. In either case, he initially

worked out of Texas. From November 1989 on, however,

nis regular, daily route had been between Tijuana and

Peoria.

So severe were Morales’ injuries that he was

hospitalized in Yuma for a week following the accident.

Contrary to his present claim that he "remained immobile"

for the following year, Petition at 5, he returned to Juarez

upon his release and thereafter consulted an attorney.

At the Industrial Commission of Arizona’s hearing,

Morales’s local attorney stated that the records of the

Texas attorney, James Scherr, contained "mention of

representation in March of ’91." See Petition, App. A, at

|

3

12, 13 n.8. The Commission accordingly found that

Morales "was acting under the advice of an attorney as

early as March, 1991, well within the one year filing

period." Petition, App. C, at 31.

Whether the advising attorney was Scherr is a

matter of dispute. What is not disputed is that Morales

formally retained Scherr on October 3, 1991 and that this

attorney represented Morales first in a common-law

negligence claim against his employer. Scherr then

represented Morales in a Texas workers’ compensation

claim. Although Morales did not retain Scherr for the

latter purpose until November 8, 1991, the Texas claim he

filed two days earlier was on the advice of the attorney.

The claim was denied in May 1992 on the ground

that Morales was not an employee within the Texas Act.

The denial is still on appeal in the courts of that state. In

the meantime, on November 23, 1992, two years and four

months after the industrial injury, Morales filed a workers’

compensation claim in Arizona.’ In the meantime, too, he

began receiving benefits under Mexico’s social security

system.

' His filing on this date belies his later claim that he was unable

to recognize the compensable character of his injury under Arizona

law until December 1992, when the carrier first contended the claim .

should have been brought in Arizona.

—

4

Il. Procedur k nd

Morales’ Arizona claim was denied on April 5,

1993. He protested the denial, the respondents raised the

untimeliness of the claim as an affirmative defense, and

the case proceeded to hearing on November 15, 1993.

The resulting award found that the claim was indeed

untimely and that the untimeliness was not excused under

A.R.S. § 23-1061(A). See Petition, App. C.

Morales protested the Commission’s award on two

grounds unrelated to the pending petition. See Petition,

App. E. His only constitutional argument was that the full

faith and credit clause required Arizona to apply Texas’s

saving statute to his claim. Id, at 38. The Commission’s

finding that he had acted with the advice of counsel since

at least March 1991 went unchallenged.

Once the Commission affirmed its award, Morales

appealed to the Arizona Court of Appeals. Here, for the

first time, he touched on the issue now before this Court.

He argued, without citation to any specific authority, that

to enforce the one-year limit on an employee’s time to file

a claim “without imposing a similar penalty on an

employer who violates the Act by failing to report the

injury” is to deprive the employee of an opportunity for a

hearing, in violation of the due process clause. See

Petition, App. F, at 53-54.

* Morales separately argued that the statute of limitations for

filing his Arizona claim should have been tolled until his employer

5

The court of appeals declined to consider Morales’

due process argument, as well as five other new issues he

raised, because they had not been preserved for review.

See Petition, App. A, at 18-19. It also rejected his claim

that the due process argument should be considered under

an exception recognized by the Arizona court for

questions of "a general public nature, affecting the

interests of the state at large." Id. at 17-19 (quoting Ruth

v. Industrial Commission, 490 P.2d 828, 830 (Ariz. 1971)).

The court held, to the contrary, that the “current case will

affect few claimants other than Morales." Id, at 19.

In petitioning the Arizona Supreme Court for

review, Morales invoked the due process clause to argue —

variously that Arizona’s Workers’ Compensation Act was

facially invalid and that it was invalid as applied. See

Petition, App. G, at 60, 66-67. In the name of due

process, he also invoked Arizona’s saving statute. Id, at 67

("the one-year limitations period, without a tolling [sic]

provision while the same is pending in a foreign

jurisdiction, operates to deprive him of his due process

right to a hearing"). He finally also asserted the argument

now before this Court, that the "dissimilar" penalties

imposed on employees and employers who violate the Act

constitutes a due process violation. Id. at 68.

filed the required report with the state’s Industrial Commission. This

argument was based not on the due-process clause, however, but on

the asserted requirement that Arizona apply Texas law to his claim.

See id. at 48-49.

6

On November 22, 1995 the Arizona Supreme Court

denied Morales’s petition for review. The lower court’s

holding that Morales had not preserved the due process

issue for review thereby became final.

Reasons to Deny the Writ

I,_Introduction

The foregoing procedural history establishes that

Morales’s due process claim is not properly before this

Court. His new arguments, addressed in Section II below,

compel no different conclusion.

Even if jurisdiction were not at issue, however, the

petitioner’s other arguments defy both established federal

and state law and basic principles of equity.

The general rule in Arizona, as elsewhere, is that

an issue not raised before the Industrial Commission is not

subject to appellate review. See Stephens v. Industrial

Commission, 559 P.2d 212, 214 (Ariz. Ct. App. 1979).

Arizona makes an exception for issues of "a general public

nature, affecting the interests of the state at large." Ruth,

490 P.2d at 830. Under both the rule and its exception,

the court of appeals declined to consider Morales’ claim

that the Workers’ Compensation Act deprived him of

7

notice and an opportunity to be heard.

Contrary to Morales’s assertion, the Arizona court

has applied the general rule consistently. This is evident

even from the cases he cites for a contrary proposition.

Ruth itself adjudicated -eight consolidated claims

challenging Arizona’s lien statute on the ground that it did

not require the compensation carrier to share the cost of

the claimant’s third-party action. As such, it “addressed an

issue that affects every workers’ compensation claimant

who also has a third-party civil remedy." Petition, App. A,

at 19.

The other two cases on which Morales relies

involved hearings before administrative bodies other than

the Industrial Commission. In Rouse v. Scottsdale Unified

School District, 752 P.2d 22 (Ariz. Ct. App. 1987), rev.

denied (1988), a terminated teacher asserted for the first

time on appeal that his due process rights were violated

where his review hearing was conducted by the same

school board that had terminated him. The court of

appeals determined that this issue went to the

“competency of the board itself." Id. at 24. As such, it

was “akin to a jurisdictional question," which may be raised

at any point in a proceeding. See id, For this reason

alone, the court held that Rouse’s failure to raise the issue

before the board did not preclude judicial review. Id.

In Campbell v. Chatwin, 428 P.2d 108 (Ariz. 1967),

the real parties in interest were three persons whose

driver’s licenses or vehicular registrations had been

8

suspended. All had appealed to the superior court

without first requesting a hearing before the Arizona

Highway Department. Acknowledging the general rule

that a party must exhaust administrative remedies, the

court declared the rule inapplicable in the limited

circumstance “where, by the terms or implications of a

statute authorizing the administrative remedy, the remedy

is permissive only." Id, at 114. Despite its dicta, echoed

in Rouse, that the exhaustion rule should not be

“summarily applied where jurisdiction of the agency is

being contested," id,, the Campbell court went on to find

the rule applicable here. These cases, in summary, do not

establish any unreasoned inconsistency in the court’s

application of the rule.

Morales’s further assertion that the Industrial

Commission’s fact-finding expertise could serve no

legitimate function in the adjudication of his constitutional

claim is similarly mistaken. Admittedly the Commission

could not declare the statute governing a claim’s timeliness

unconstitutional. But it could have made findings relevant

to, if not determinative of, the more concrete issue of

notice. Had the issue been properly raised, the record

might now include, for example, Morales’s own testimony

on when he first consulted an attorney, who that attorney

was, and whether he was licensed to practice in any of the

United States. As the record stands, only the averments

of local counsel address any of these matters.

The Arizona Court of Appeals accordingly did not

err in holding that Morales had not preserved his due

process claim for review. Neither did it err in the

conclusion that Morales’s case would affect few other

claimants. Indeed it is as rare as legal malpractice itself

that a worker who has been injured on the job will -- on

the advice of an attorney -- bring a tort action against his

employer, then file a workers’ compensation claim not

only belatedly but in the wrong state. Nothing about this

case raises any question of "a general public nature,

affecting the interests of the state at large."

II izona’ verni imeli laim

d not impli d r i in wh

id nia amet | ;

Prior to its amendment in 1980, Arizona’s statute

establishing a one-year limitation for the filing of

compensation claims had been liberally construed by the

court. See Allen v. Industrial Commission, 733 P.2d 290,

294-95 (Ariz. 1987) (reviewing the - history and

constitutionality of A.R.S. § 23-1061(A)). Based on the

statutory provision that the failure to timely file must be

raised at the first hearing, A.R.S. § 23-1061(D), the court

construed the one-year filing requirement as an affirmative

defense. Allen, 733 P.2d at 294-95. As such, an employer

could be equitably estopped from raising the defense

"where he had, by his own conduct, caused the employee

to forebear [sic] filing a claim." Id, at 295 (quoting Van

Horn v. Industrial Commission, 527 P.2d 282, 284 (Ariz.

1974) ("Van Horn II")).

10

In 1980 the legislature amended A.R.S. § 23-1061

"expressly to deprive the Commission and the courts of

jurisdiction to excuse late filings except on certain

enumerated grounds.” Id, The Allen court declared the

amendment constitutional on two grounds: first, because

the legislature may reasonably regulate the time in which

a compensation claim may be filed and, second, because

the amended statute still provided claimants with "a

reasonable opportunity to file a claim." Id. at 297. The

amendment therefore did not violate the state

constitutional mandate for a "just and humane

compensation law." Id, (citing Ariz. Const. art. XVIII, §

8).

Since 1968 a separate section of Arizona’s Act has

required employers to report industrial accidents to the

Commission and has provided penalties for their failure to

do so. A.R.S. § 23-908(F) & (H) (quoted supra at p. 1).

The relevant subsections have been unchanged since 1968.

A.R.S. § 23-908, Hist. & Stat. Notes (1995). Arguably, the

employer’s failure to file the required report might have

estopped it from raising the statute of limitations as a

defense prior tc the 1980 amendment of A.R.S. § 23-

1061(A).

3

- Although Morales’s pleadings in state court sought to bring

him within the enumerated exceptions, his petition to this Court

makes no such claim.

1]

The evolution of section 23-1061(A) has inversely

reflected the evolution of the federal Longshore and

Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901

et seq. (hereafter "LHWCA"). As originally enacted, the

LHWCA provided: .

The right to compensation for disability

under this chapter shall be barred unless a

claim therefor is filed within one year after

the injury, and the right to compensation for

death shall be barred unless a claim

therefor is filed within one year after the

death....

33 U.S.C.A. § 913(a), quoted in Ayers v. Parker, 15 F.

Supp. 447, 448 (D. Md. 1936). Like Arizona’s present

A.R.S. § 23-1061, the federal statute went on to

enumerate specific exceptions to the one-year filing

requirement. See id, § 913(c) & (d), quoted in Ayers, 15

F. Supp. at 448-49. A separate section required the

employer to report the injury to the Secretary within ten

days of its occurrence. 33 U.S.C.A. § 930(a), cited in

Ayers, 15 F. Supp. at 452.

In Ayers, a widow’s death claim was rejected on the

ground that it was not filed within one year of the date of

death and that it did not fall within any of the statutory

exceptions. The widow’s argument strikingly parallels

Morales’. She argued that the employer should be

estopped from raising the claim’s untimeliness as a

defense

era

12

because of its own failure to comply with

section 30 of the act (33 U.S.C.A. § 930)

which requires all employers to make a

detailed report to the commission and

Deputy Commissioner within ten days of the

date of any injury to or death of employees,

subjecting the employer to a civil penalty

not exceeding $500 for every failure or

refusal so to do....

Ayers, 15 F. Supp. at 452.

The court unequivocally declared the widow’s

argument meritless. See id. Conceding that the employer

should have reported the injury or death if it was within

the Act, “nevertheless section 30 is entirely separate and

distinct from section 13. Id. (emphasis added). The court

affirmed the Deputy Commissioner’s rejection of the

widow’s claim.

In Young v. Hoage, 90 F.2d 395 (D.C. Cir. 1937),

the court of appeals similarly considered whether a widow

was entitled to death benefits under the LHWCA where

she, too, had filed no claim within one year. Reviewing

the case law of states with provisions similar to section

913, the court concluded:

[W]Jhere a statute gives a right of the

character in question -- a right unknown to_

the common law - and limits the time

within which an action shall be brought to

13

assert it, the limitation defines and controls

the right.

Id, at 400 (citing William Danzer & Co. v. Gulf R. Co.,

268 U.S. 633 (1925)). Again, the court affirmed the

rejection of the widow’s claim.

In 1938, the LHWCA was amended to include a

provision tolling the limitations period of section 913(a)

- until the employer filed the report required by section

930(a). 33 U.S.C.A. § 930(f) & Hist. Note (1986). In

February 1938, less than a year before the amendment

became effective, a longshoreman named Steffen sustained

an injury compensable under the LHWCA. Associated

Indemnity Corp. v, Pillsbury, 147 F.2d 546, 546 (9th Cir.

1945). Returning to work after only a few days, Steffen

filed no claim for compensation at the time. His

employer, who knew about the injury, filed no report. By

August 1938 Steffen had become completely disabled from

his injury. Still he filed no claim until January 1941.

In arguing that Steffen’s claim was barred under

section 913(a), the employer asserted that the amendment

tolling the limitations period could not be given retroactive

effect. Id. Such effect would be barred if the amendment

were deemed substantive. See, e.g., Pierce v. Hobart

Corp., 939 F.2d 1305 (Sth Cir. 1991). The Ninth Circuit

declared, however, that the amendment "related purely to

a matter of administration." 147 F.2d at 546-47 (Congress

apparently intended to give employers an additional

incentive for obeying the statutory mandate). It held that

14

Steffen’s claim was not time-barred.

This line of cases establishes what a survey of the

States’ current workers’ compensation statutes confirms:

that whether or not the limitations period for filing a claim

is tolled until the employer files its report, the statutory

scheme does not implicate any substantive rights, much

less the constitutional right to notice and a hearing.

Indeed, it is well established that

[uJnder some statutes, but not others, the

failure of the employer to file the required

report of the accident deprives the employer

of the defense of limitations or extends the

time within which the employee may file his

claim.

100 C.J.S. Workmen’s Compensation § 475, at 390 (1958).

Where the statute does not so provide, however, "the

employer’s mere failure to report the accident .. . as

required does not toll" the limitations period. Id, at 391.

The penalty against the employer under such statutes is

whatever the legislature prescribes. See, ¢.g., Poythress

v. J.P. Stevens & Co.. 283 S.E.2d 573, 579 (1981), rev.

denied, (1982).

Although the statutes of many states are or have

been in the latter group with Arizona’s, see 100 CJ.S.

Workmen’s Compensation § 475, at 391. n. 49 (1958 and

Supp. 1995); DeRousse v. PPG Industries, 598 S.W.2d

15

106 (Mo. 1980), the petitioner cites not a single authority

even suggesting that such statutes may violate due process.

Because federal courts presume that state legislatures act

constitutionally, Hartford Fire Insurance Co. v. Lawrence,

Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362 (

(6th Cir. 1984), and because the burden of demonstrating

unconstitutionality is on the party assailing a law, United

States v. Conner, 715 F. Supp. 1327 (W.D.N.C. 1989),

Morales’s challenge to A.R.S. § 23-1061(A) must fail.

The amount of process due under the fifth and

fourteenth amendments is "minimal." Thomas v, Devries,

834 F. Supp. 398 (M.D. Ga. 1993) affd, (11th Cir. 36 F.3d

95). Due process is "not a technical abstraction unrelated

to time, place, and circumstances, but rather an

embodiment of fundamental principles of fair play and

justice." Erwin v, City of Santa Fe, 599, 855 P.2d 1060,

1063 (N.M. Ct. App. 1993) (citing Lassiter v. Department

of Social Services, 452 U.S. 18, 24 (1981)). As such, due

process dictates "no single model of procedural fairness,

let alone a particular form of procedure." Kremer vy.

Chemical Construction Corp., 456 U.S. 461, 483 (1982).

In the case of statutes, notice is constructively given

and due process satisfied by mere publication. Breath v.

Cronvich, 729 F.2d 1006, 1011 (Sth Cir.) cert denied, 469

Pe AAD Ae 00 AAS Nair BES Capon,

ee ee i ee

ee ee ek eae

16

U.S. 934 (1984). Therefore, even though the 1980

amendment of A.R.S. § 23-1061(A) eliminated all

meritorious excuses for untimely filing except those

specifically enumerated therein, Morales cannot be heard

to complain that he was thereby denied notice of the one-

year filing requirement. When a legislature enacts

"general legislation eliminating a statutory right, or

affecting the "benefits and burdens of economic life,” the

legislative process itself provides all the process that is

due. Ponce Paramedical College v. United States

Department of Education, 858 F. Supp. 303, 314 (D.P.R.

1994) (citations omitted).

Ignorance of the statute, therefore, cannot form the

basis of a due process challenge. Gaston v. Taylor, 946

F.2d 340, 342 (4th Cir. 1991). Where, as in Arizona, the

Workers’ Compensation Act allows claimants a full year

to file their claims, Morales’ failure to avail himself of the

Statutory procedure, whether or not he had actual

knowledge of it, does not constitute a violation of due

process. See Bonilla v, Rodriguez, 635 F. Supp. 148, 153

(D.P.R. 1986).

In the instant case, moreover, Morales was either

represented by or acting under the advice of an attorney

well within the one-year limitations period. Whether or

not the attorney had actual knowledge of workers’

compensation law in general and Arizona’s law in

particular, such knowledge is imputed to him or her. As

Morales’s agent, the attorney’s knowledge is in turn

imputed to Morales. Between the two of them, then, they

17

knew both that Morales had sustained an industrial injury

and that he had one year from the date of injury to file an

Arizona claim.

[D]ue process is not offended by requiring

a person with actual, timely knowledge of

an event that may affect a right to exercise

due diligence and take necessary steps to

preserve that right.

In re Medaglia, 52 F.3d 451, 455 (2d Cir. 1995). Neither

is due process offended by not providing personal notice

to a person who already has constructive knowledge of the

matters of which they might be notified. See Moreau v.

Federal Energy Regulatory Commission, 982 F.2d 556, 569

(D.C. Cir. 1993).

Whatever knowledge Morales claims would have

come to him through the employer’s statutorily required

report, therefore, is knowledge he already had. He had

knowledge of the event giving rise to his claim. He had

knowledge of Arizona’s Act through its enactment and

publication. He had knowledge of its specific filing

requirement. His due process rights were therefore not

violated by the absence of a statutory penalty against the

employer that would toll the limitations period until he

received personal notice. See Tulsa Professional

Collections Services v. Pope, 485 U.S. 478 (1988) (due

process does not require that potential plaintiffs be given

notice of the impending expiration of the limitations

period).

ee ee ee ee ee ee eee

The flexibility the due process clause affords

legislatures in fashioning procedures is reinforced by the

separation of powers doctrine. Thus the Ninth Circuit

declared:

[W]hether legislation mee‘s its objectives is

never a basis for [the court’s] striking it

down. Congress is not required to enact

perfect legislation.

Das v. Department of Health & Human Services, 17 F.3d

1250, 1256 (9th Cir. 1994) (citing Dandridge v. Williams,

397 U.S. 471, 485 (1970)). Declining to find a specific

Statute violative of due process, the Seventh Circuit stated

that "[djue process just requires procedures that will

usually lead to correct outcomes." Del’s Big Saver Foods

y. Carpenter Cook, Inc., 795 F.2d 1344, 1350 (7th Cir.

1986). The First Circuit stated similarly that the

Constitution simply “does not require every procedural

protection that might help." Newman v. Burgin, 930 F.2d

955, 961 (ist Cir. 1991).

Together these principles refute Morales’s charge

that Arizona’s Workers’ Compensation Act deprived him

of due process. It was entirely within the Arizona

legislature’s prerogative to limit the sanctions for an

i9

employer’s violation of the reporting requirement as it did.

See A.R.S. § 908(H) (violating employer is guilty of a

petty offense). That tolling the limitations period for filing

a claim might have given employers "an additional

incentive for obeying the statutory mandate," see

Associated Indemnity Corp. 147 F.2d at 547, is

constitutionally immaterial. The due process clause does

not require every procedural protection that might possibly

help.

Federal and state courts have regularly applied

these principles to due process challenges to statutes of

limitations. In Logan v. Zimmerman Brush Co,, 455 U.S.

422 (1982), this Court stated unequivocally that not every

civil litigant is entitled to a hearing on the merits in every

case:

The State may erect reasonable procedural

requirements for triggering the right to an

adjudication, [including] statutes of

limitations .... And the State certainly

accords due process when it terminates a

claim for failure to comply with a

reasonable procedural . . . rule.

Id. at 437 (emphasis in original) (citations omitted). See

also Chase Securities Corp. v. Donaldson, 325 U.S. 304,

313-16 (1945) (statutes of limitations are by definition

arbitrary; they come into law not through the judicial

process but through legislation; they represent a public

policy about the privilege to litigate).

1 Doin al Ait i i hee VS Plies

20

Where, in a workers’ compensation act, the state

legislature has chosen not to toll the statute of limitations

until an employer files the required report, the legislative

prerogative has been uniformly upheld. Thus, for

example, in DeRousse, the injured employee argued that

the eight-year delay in filing his compensation claim

should be excused because of the employer’s failure to

report the injury as required by statute. 598 S.W.2d at

107. Michigan’s Act, like Arizona’s, required the

employee’s claim to be filed within one year of the injury

unless one of the several specified exceptions applied. See

id, The Act also required the employer to file its report

within ten days after acquiring knowledge of the injury,

and it specified the penalty for violation of the

requirement as

a fine of not less than fifty nor more than

five hundred dollars, or . . . imprisonment in

the county jail for not less than one week

nor more than one year, or both the fine

and imprisonment.

Id. at 107-08 (quoting Mo. Rev. Stat. § 287.380.4 (1978)).

The Supreme Court of Missouri soundly rejected

the employee’s argument. Reasoning that the employer’s

failure to report the accident "in no way prevents the

injured employee from filing a claim," id, at 110, the court

held:

21

Had the legislature intended that the

employer’s neglect or failure to file a report

of injury should toll the limitations period,

it "would have adopted the simple, certain,

and easy method of directly incorporating

such provision." The legislature’s omission

of tolling from the sanctions authorized for

the employer’s failure to comply with [Mo.

Rev. Stat.] § 287.380 indicates that tolling is

not an appropriate sanction for such failure,

absent fraud. "Statutes of limitations are

favored in the law, and cannot be avoided

unless the party seeking to do so brings

himself strictly within [an] exception."

... "[Cjourts are not at liberty to

write into [the Workmen’s Compensation

Law] under the guise of construction,

provisions which the legislature did not see

fit to insert."

Id. at 111-13 (citations omitted) (interpolations in

original).

Under similar facts the Supreme Court of Indiana

refused to "substitute our convictions as to the desirability

or wisdom of legislation for those of our elected

representatives." Bunker v, National Gypsum Co., 441

N.E.2d 8, 11 (Ind. 1982) cert. dismissed, 460 U.S. 1076

22

(1983). The court declared that legislative statutes of

limitations, like other legislation, "carry a general

presumption of constitutionality’:

ett teed a AR rs

A statute of limitations will comport with

due process so long as it provides a

reasonable time for the bringing of an

action. ... "In respect to substantive rights,

conferred by law, or acquired by contract,

there is no doubt of constitutional

protection without modification or change.

It is otherwise with a mere remedy. A

remedy is nothing more than the means

provided by law for the enforcement of

rights, and is not of itself a right.... [A]s

pertaining to a mere remedy, there exists no

doubt of legislative power to make such

changes therein as to it seems fit, if in doing

SO it preserves or provides a reasonable

means and opportunity for full enjoyment of

the right." The legislature has the sole duty

and responsibility to determine what

constitutes a reasonable time for the

bringing of an action unless the period

allowed is so manifestly insufficient that it

represents a denial of justice.

Ne Nt enn ee ee ee a a eee ee ee ee wath

Id. at 12 (citations omitted).

Morales does not contend that the limitations

period established by A.R.S. § 23-1061(A) is in itself

23

insufficient. Rather he contends that the legislature erred

in not providing an additional exception to its running,

where the employer does not file the report required by

A.R.S. § 908(F). As the above-cited cases suggest,

Morales’ claim should be addressed not to the court but

to the legislature. The former may not constitutionally

"second-guess" the latter, charged as the legislature is with

the "heavy responsibility of regulating the social obligations

that exist between the employee, the employer, and the

public." Desselle v, Liberty Mutual Insurance Co., 482 So.

2d 1009, 1012 (La. Ct. App. 1986).

V.__Th imelin f ’s claim i usall

nrelated isi r_omissi in_ Arizona’

Act or to his employer’s failure to comply with the Act’s

re ing requi nt

Morales’s failure to file his Arizona claim until two

years and four months after his industrial accident cannot

be attributed either to his employer’s violation of A.R.S.

§ 23-908(F) or to the absence of a provision tolling the

limitations period until the employer files the report

required by that section. Morales’s failure is attributable

to entirely unrelated causes.

Despite the severity of his industrial injuries,

Morales managed to consult an attorney within eight

months of their occurrence. Clearly, he considered the

compensability of his injuries at that time. In fact, the

consultation led to the retention of counsel, the filing of

a negligence action against his employer, and later the

See te ne COC ne Sees Coens Cot or ee Wie

Js

filing of a workers’ compensation claim in Texas.

That Morales and his attorney misperceived the

nature of their remedy and chose a wrong forum for their

belated industrial claim was entirely their own doing. So,

too, was their very belated recognition that the claim

should have been filed in Arizona. See supra note 1 and

accompanying text. It was these actions, rather than any

shortcomings on the part of the Arizona legislature or

Morales’s employer, that caused his claim to be untimely.

Confronted with similar facts in Eaton v. Bath Iron

Works, 502 A.2d 1040 (Me. 1986), the Supreme Judicial

Court of Maine reached precisely the same conclusion.

Two and a half years elapsed there between the time of

the employee’s industrial injury and the time he filed his

claim. Although the employer had received timely notice

of the injury, it waited until the employee filed his claim

before filing the employer’s report required by the Maine

Act.

Like Morales, the employee argued that if the

employer had timely filed its report,

the notification mechanism . . . would have

been triggered, and he would have been

informed about the .. . statute of

limitations. Inasmuch as his failure to file a

claim within the statute of limitations was

caused by the inactivity of the employer,

[the employee] argues that [it] should be

25

equitably estopped from using this defense.

Id, at 1042. The court rejected the employee’s argument.

It held it "incumbent on the employee to establish a causal

link" between the employer’s failure and his own delay.

Id, at 1043. In the absence of such evidence the court

found the doctrine of equitable estoppel inapplicable and

the employee’s claim time-barred. See id.

Even if Morales had carried his burden of proving

Arizona’s statutory scheme unconstitutional, therefore, his

petition should not be granted. The record is devoid of

any evidence that the statutory scheme, rather than the

pursuit of mistaken remedies, caused his claim to be filed

untimely.

Conclusion

The petition for certiorari should be denied. The

Arizona Court of Appeals’ decision and the Arizona

Supreme Court’s refusal to review it are fully in accord

with the decisions of both federal and state courts.

26

Respectfully submitted,

R. Todd Lundmark

Counsel of Record

Long, Lundmark & Poppe,

P.A.

3225 N. Central Avenue

Suite 1617

Phoenix, Arizona 85012

(602) 279-9777

; Toby Zimbalist

1229 E. Briarwood Terrace

Phoenix, Arizona 85048

(602) 460-4882

Counsel for Respondents