BULK/ZURICH v. FREEMAN

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BULK TRANSPORTATION, Petitioner Employer, ZURICH AMERICAN INSURANCE CO., Petitioner Carrier, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, JAMES FREEMAN, Respondent Employee. ) 1 CA-IC 12-0035 ) ) DEPARTMENT B ) ) O P I N I O N ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05/07/2013 RUTH A. WILLINGHAM, CLERK BY: GH Special Action--Industrial Commission ICA CLAIM NO. 20103-000241 CARRIER CLAIM NO. 201019605 Administrative Law Judge Gary M. Israel AFFIRMED Lester & Norton, P.C. By Steven C. Lester Attorney for Petitioners Employer/Carrier Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Law Office of Jared O. Smith By Jared O. Smith Attorney for Respondent Employee Safford H O W E, Judge ¶1 Zurich American Insurance Company and Bulk Transportation (collectively, petitioners ) challenge an award of workers compensation benefits to James Freeman. Petitioners contend that the Administrative Law Judge ( ALJ ) erroneously awarded Freeman facial disfigurement benefits because Freeman sustained a permanent scar on his neck, not on his face. Because the ALJ did not err, we affirm the award of benefits. FACTS AND PROCEDURAL HISTORY ¶2 On October 8, 2010, Freeman, a truck driver, was transporting sulfuric acid for his employer. He noticed that acid was leaking from the hose of his truck and replaced the hose. Unfortunately, the replacement hose became loose and sprayed acid on his face and neck. Freeman was transported to the Maricopa County Burn Unit for treatment. ¶3 The Industrial Commission of Arizona ( the Commission ) examined Freeman for possible facial disfigurement. On July 12, 2011, the Commission issued its findings and award for scheduled Commission permanent found disfigurement and that was disability. Freeman entitled Without sustained to an award elaboration, permanent of the facial $2,069.89 per month for 4.5 months, $9,314.51 in total. For reasons not clear 2 from the record, the Commission subsequently rescinded the award. 1 ¶4 Freeman requested a hearing to address compensation for his facial and neck scarring. At the hearing, the ALJ heard testimony about Freeman s injuries and his medical evaluation and treatment. The ALJ expressed concern about whether Freeman s injuries constituted facial disfigurement, and Freemen testified about the injury on his neck that he claimed was disfiguring. The ALJ measured the scar on Freeman s neck and determined that the scar s size was between four and five inches and was visible at more than twenty feet. The ALJ used a visual observation chart from the Commission s 1998 Claims Processing Manual to assist in making his determination, but noted that the claims division manager stated that they really don t rely on that much anymore. The chart recommended that a scar that fit this description should be compensated for up to twelve months. ¶5 The ALJ subsequently found that [o]bservation of the applicant s face/neck showed scarring on the right side of his neck visible at more than 20 feet and discoloration of the right side of his face. He noted that 1 The record is not clear why the award was rescinded, but the ALJ noted that it was for good cause. Counsel suggested that the award was premature because it was issued while a previous Request for Hearing was scheduled. Whatever the reason, the rescinded award has no evidentiary value. Bratz v. Indus. Comm n, 178 Ariz. 359, 361, 873 P.2d 697, 699 (App. 1994). 3 the area below the jawline and on the applicant s neck . . . clearly constitutes scarring or disfigurement. The issue there is whether the neck is included in the head or face pursuant to [A.R.S. § 231044(B)(22)] when assessing facial disfigurement. He further noted that the Commission s 2011 Claims Seminar Manual states that regarding facial disfigurement, scars on the face, neck or ears are compensable if they are clearly visible when the injured worker is fully dressed, i.e., a scar must cause an observable appearance of the Freeman s neck marring injured scar was or impairment worker. The compensable ALJ under of the natural concluded Arizona that Revised Statutes ( A.R.S. ) section 23-1044(B)(22) (West 2013), 2 measured more than four to five inches in size and was visible at a distance of more than twenty feet. The ALJ relied on § 231044(B), which disabilities average provides shall monthly be wage that awarded of the compensation at fifty-five injured for permanent percent employee, and of the awarded Freeman $2,069.89 per month for twelve months, or a total of $24,838.68. ¶6 Petitioners requested review, but the ALJ affirmed his previous findings and award. This special action followed. 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 4 DISCUSSION ¶7 Petitioners argue that the ALJ erred in interpreting the language permanent disfigurement about the head or face in A.R.S. § 23-1044(B)(22) reviewing the to Commission s include Freeman s findings and neck awards, scar. this In Court defers to the ALJ s factual findings but reviews questions of law de novo. Gutierrez v. Indus. Comm n, 226 Ariz. 1, 2, ¶ 2, 243 P.3d 604, 605 (App. 2010). We consider the evidence in the light most favorable to upholding the ALJ s award. Id. ¶8 In interpreting a statute, we look to the statute s language as the most reliable indicator of its meaning. Bridgestone Retail Tire Operations v. Indus. Comm n, 227 Ariz. 453, 455, ¶ 7, 258 P.3d 271, 273 (App. 2011). If the language is clear and unambiguous, we apply it without resorting to other methods of interpretation. Id. We give words their ordinary meaning unless the statute s context requires otherwise, A.R.S. § 1-213; Ariz. Dep t of Econ. Sec. v. Lee ex rel. Cnty. Of Maricopa, 228 Ariz. 150, 152, ¶ 7, 264 P.3d 34, 36 (App. 2011), and consider respected dictionaries to determine the ordinary meaning, Loftus v. Ariz. State Univ. Pub. Safety Pers. Ret. Sys. Local Bd., 227 Ariz. 216, 223 n.10, ¶ 27, 255 P.3d 1020, 1027 n.10 (App. 2011). ¶9 Applying these principles, Freeman s neck scar was compensable under § 23 1044(B)(22). That statute provides for 5 compensation for permanent disfigurement about the head or face : For permanent disfigurement about the head or face, which shall include injury to or loss of teeth, the commission may, in accordance with the provisions of § 23-1047, allow such sum for compensation thereof as it deems just, in accordance with the proof submitted, for a period not to exceed eighteen months. Although the statute does not expressly state that permanent disfigurement of the neck is compensable, the statute includes such disfigurement in the phrase about the head or face. The ordinary definition of about includes on all sides; in every direction; around and in the vicinity; near. Webster s Third New International Dictionary 5 (3d ed. 2002); see also The American Heritage Dictionary 4 (New College ed. 1979) (defining about to mean approximately; nearly or all around; on every side ). Because the neck is around, near, and in the vicinity of a person s head or face, a permanent disfigurement of the neck is compensable. 3 3 Of course, any scar or other mark on the neck must also cause an observable marring or impairment of the natural appearance of [the claimant] to qualify as disfigurement under § 23 1044(B)(22). Funk v. Indus. Comm n, 167 Ariz. 466, 469, 808 P.2d 827, 830 (App. 1991). Although petitioners contest that the neck is included within the language about the head or face, they do not contest that Freeman s scar was a disfigurement. 6 ¶10 that Petitioners take issue with the ALJ s ruling, arguing a within permanent § statute. 23 1044(B)(22) But disfigurement meaning disfigurement of as the because explained, about the word of neck neck the head the not statute s or about, is face, is not listed phrase given necessarily included in the permanent the includes ordinary permanent disfigurement to the neck. 4 ¶11 Petitioners also argue that about is merely synonymous with on, and a neck disfigurement is not on the head or face. But even petitioners own authority for this proposition does not define about so narrowly, and agrees with the word s ordinary definition. See http://www.merriam-webster.com/dictionary/about April 9, 2013) (defining the word as Merriam-Webster, (last reasonably visited close to ; almost ; on all sides, around in the vicinity ). Nothing indicates that the Legislature intended to restrict the meaning of about to on. See State v. Garcia, 219 Ariz. 104, 106, ¶ 6, 193 P.3d 798, 800 (App. 2008) (stating that we will assume that the legislature has given words their natural and obvious meanings unless otherwise stated ). 4 The ALJ did not err in Petitioners argue that the ALJ erroneously relied on the Commission s 2011 Claims Seminar Manual in determining whether Freeman s neck scar was compensable under § 23 1044(B)(22). Our conclusion that the language of the statute includes disfigurements such as Freeman s renders this argument moot. 7 ruling that Freeman s neck scar is compensable under the statute. ¶12 Petitioners further argue that the ALJ s determination was arbitrary and unreasonable because he considered a visual observation scale from the 1998 Claims Processing Manual in determining the amount of the award even though the Commission s claims division manager had stated that the manual was not relied on that much anymore. But nothing shows that the ALJ s determination was arbitrary or capricious. Section 23- 1044(B)(22) provides discretion in the amount of the award, as long as it does not exceed eighteen months: The commission may allow such sum for compensation thereof as it deems just, in accordance with the proof submitted, for a period of not to exceed eighteen months. Here, the ALJ considered the evidence and observed the scarring on Freeman s body and found that Freeman sustained a permanent scar. Based on this evidence, the ALJ properly exercised his discretion to award $2,069.89 per month for twelve months. The award was within the statutory limit, and nothing precluded the ALJ from consulting the visual observation scale determining the in award. the The 1998 ALJ Claims did Processing not act Manual in arbitrarily or capriciously in determining the award of benefits to Freeman. 8 CONCLUSION ¶13 We affirm the award of benefits to Freeman. ___/s/___________________________ RANDALL M. HOWE, Judge CONCURRING: __/s/__________________________________ ANDREW W. GOULD, Acting Presiding Judge _/s/___________________________________ JOHN C. GEMMILL, Judge 9

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