# Opposition Brief — Morales v. Industrial Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1233

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1903%3A3. Public record. Not legal advice.