THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
JOHN D. HAYDT,
THE INDUSTRIAL COMMISSION OF
FIFTY NINE MINUTE SERVICE, INC.,
SPECIAL FUND/NO INSURANCE
Respondent Party in Interest.
RUTH A. WILLINGHAM,
1 CA-IC 10-0033
AMENDED MEMORANDUM DECISION
(Not for Publication –
Rule 28, ARCAP)
Special Action—Industrial Commission
ICA CLAIM NO. 20082-030450
CARRIER CLAIM No. NONE
Administrative Law Judge J. Matthew Powell
John D. Haydt
In Propria Persona
Andrew F. Wade, Chief Counsel,
The Industrial Commission of Arizona
Attorneys for Respondent
The Industrial Commission of Arizona/Special Fund/
No Insurance Section
By Suzanne Scheiner Marwil
Attorney for Respondent Party in Interest
W I N T H R O P, Judge
Commission of Arizona (“the ICA”) award and decision upon review
finding that the claim filed by John D. Haydt (“Applicant”) for
workers’ compensation to be noncompensable.
On review, Applicant
argues that the Administrative Law Judge (“the ALJ”) abused his
discretion, and further, that Arizona Revised Statutes (“A.R.S.”)
section 23-1081(B) (Supp. 2010) is unconstitutional.
affirm the ALJ’s finding of noncompensability.
FACTS AND PROCEDURAL BACKGROUND
Applicant is an electrician by trade.
court affirmed the ICA’s decision.
On November 23,
See Haydt v. Liberty Cooling
& Heating, 1 CA-IC 08-20026 (Ariz. App. Feb. 19, 2009) (mem.
We upheld the ALJ’s findings that:
the claim for the
November 23, 2004 injury was properly dismissed as untimely; the
compromise and settlement agreement approved by the ICA; and most
pertinent to the instant appeal, the claim for the September 6,
2005 “electric shock”
cognitive dysfunction as a result of these electric shocks, he
continued to work as an electrician after the final adjudication
in the Liberty proceedings.
Heating, Applicant was employed by Fifty Nine Minute Service,
Inc. (“Employer”) for a total of two months in 2005.
he worked as a self-employed electrician under the business name
On July 21, 2008, Applicant filed a “Workers’
Report of Injury” stating that he had developed an occupational
disease pursuant to A.R.S. § 23-901.01 (1995) as a result of
“Multiple Electrocutions” suffered while working for Employer.
neurological problems – caused by multiple, severe electrocutions
Insurance Section of the ICA when it was determined that Employer
did not possess workers’ compensation coverage.
Thereafter, the ICA conducted a hearing at which the
same medical experts from the Liberty proceedings were called to
Although the experts had continued to treat Applicant
unaware of Applicant having suffered any injury while working for
At the hearing, Applicant was able to recall only five
specific instances of receiving a severe electric shock that he
already been litigated in the Liberty proceedings and the other
To support his argument that he had received a severe
testified that he received as many as one severe shock per every
year he worked as an electrician. Applicant believed he must have
received a severe shock in the two months that he worked for
Employer about the shock when it occurred; (2) he didn’t remember
when, or even if, he had been shocked while working for Employer
until several days before the hearing; (3) he may not have ever
subsequently received a severe shock since leaving Employer and
evidence he relied on to prove his injuries was based on reports
and testimony from the Liberty proceedings.
of the testimony, the parties were then allowed to file posthearing memoranda.
claims were noncompensable, the ALJ made the following relevant
(1) that Applicant failed to prove that he was working
for Employer when he was last exposed to the potential hazard of
severe electric shock; (2) that the principle of res judicata
precluded the ALJ from again considering the Liberty injuries and
testimony relating to those injuries; and (3) that Applicant had
neurological disorder and any injury suffered while working for
suffer a compensable injury or occupational disease while working
On review, the ALJ confirmed his findings and
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(B)
(2003) and 23-951 (1995).
Applicant argues that the answering brief submitted on
behalf of the Special Fund/No Insurance Section violates Arizona
Rules of Appellate Procedure 14, contending that the respondent’s
submission on appeal is too long. We disagree. The brief itself
is only seventeen pages long and counsel also executed a
certificate of compliance in which they aver that the word count
is 3,974 words.
Pursuant to ARCAP 14, appendices containing
supporting documents are not included in the page limit.
Applicant argues, essentially, that the ALJ abused his
discretion in finding his claim noncompensable because the ALJ’s
findings - specifically findings five and six – were insufficient
to support such determination.
Further, Applicant argues that
A.R.S. § 23-1081(B) is unconstitutional and that the application
of the statute has caused harm to both him and other applicants
for workers’ compensation.
determining whether or not the commission acted without or in
excess of its power and, if findings of fact were made, whether
or not such findings of fact support the award.”
A.R.S. § 23-
sustaining the Commission’s award.”
Anton v. Indus. Comm’n, 141
Ariz. 566, 569, 688 P.2d 192, 195 (App. 1984).
review issues of law de novo.
We do, however,
Applicant argues that finding five of the ALJ’s award
is not supported by the weight of the evidence and further, that
the ALJ failed to take into account the evidence he presented at
See, e.g., Douglas Auto & Equip. v. Indus. Comm’n
of Ariz., 202 Ariz. 345, 347, ¶ 9, 45 P.3d 342, 344 (2002)
exhaustive, they cannot simply state conclusions.
explicit for a reviewing court to glean the basis for the judge’s
determined that Applicant “failed to prove to a reasonable degree
of medical or legal probability” that Applicant was working for
exposed to the hazard of severe electric shock.
determination, the ALJ:
To support his
(1) cited § 23-901.01; (2) noted that
Applicant has worked as an electrician since leaving Employer
after his employment with Employer; and perhaps most compelling,
severe shock, while working for Employer.
The evidence Applicant
presents on appeal is almost identical to that which he presented
at the hearing and only serves to show that he had, in fact,
worked briefly for Employer, that severe electric shocks may lead
to the types of cognitive impairment from which he suffers, and
that he may possibly have received a severe shock triggering
injury while working for Employer.
The ALJ, and not this court,
is the trier of fact, and we presume that the ALJ considered all
See Perry v. Indus. Comm’n, 112 Ariz. 397,
398, 542 P.2d 1096, 1097 (1975).
In this case the ALJ’s finding
hearing, and we have no reason to believe that the ALJ failed to
consider any evidence presented by Applicant.
In that regard, we
further note that the ALJ specifically referred to Applicant’s
own testimony in finding five.
award, arguing that the doctrine of res judicata should not have
witnesses, Dr. Yeamans and Dr. Bruce.
Applicant contends that
shock, and therefore, a different injury than that litigated in
the Liberty proceedings.
Applicant, however, fails to recognize
the fact that much of his experts’ testimony was limited to their
examinations, diagnoses, and findings as related to the Liberty
Further, and perhaps most importantly, these experts
resolution, and those injuries were found to be noncompensable,
the validity of the experts’ opinions regarding those very same
injuries could not be relitigated or re-considered by the ALJ in
the instant case.
See Brown v. Indus. Comm’n, 199 Ariz. 521,
“[i]ssue preclusion prevents a party from relitigating an issue”
which has already been litigated to a final judgment.); see also
Brown v. Indus. Comm’n, 48 Ariz. 161, 166, 59 P.2d 323, 325
(1936) (reiterating the fact that once an award is made, the
compensability of the petitioner and the petitioner’s condition
at the time of the award is settled for all subsequent cases via
injuries was litigated to finality in the Liberty proceedings.
The ALJ allowed Applicant to present expert testimony on (1)
whether there was an injury and when it occurred, and (2) the
causal connection between such injury and his brief employment
Applicant presented only that expert testimony he
utilized in the Liberty proceedings, and has not demonstrated on
injures in that claim.
Nothing in the record suggests that the
ALJ failed to consider relevant evidence presented by Applicant
relating to his employment with Employer and any injuries he may
have suffered during such employment.
Accordingly, we find no
error in the ALJ’s invocation of res judicata as it applied to
the experts’ testimony regarding the Liberty injuries.
More to the point, based upon this record, the ALJ
working for Employer, and we will not substitute our view of the
evidence for that of the ALJ.
See Glodo v. Indus. Comm’n, 191
Ariz. 259, 262, 955 P.2d 15, 18 (App. 1997).
constitutional rights to due process, equal protection and also
In relevant part, § 23-1081(B) states:
The administrative fund shall be no less than
self-supporting with respect to the expenses
expenditures from the administrative fund as
provided under this chapter.
special fund . . . is not on an actuarially
sound basis . . . any surplus or deficit in
the revenue provided under § 23-961 above or
commission . . . shall be included in the
calculation of the rate to be fixed for the
following year . . . If the special fund is
not on an actuarially sound basis . . . the
industrial commission shall determine if
there is a surplus in the revenue provided
under § 23-961 that is greater than the
expenses of the industrial commission and
other expenditures from the administrative
fund as provided under this chapter.
notice from the industrial commission to the
transferred to the special fund.
employees of the ICA to engage in hostile behavior towards and
unfair denial of claimants seeking workers’ compensation from the
There is no evidence that Applicant has been palpably
and personally injured by this statute, and therefore, he lacks
Napolitano, 206 Ariz. 520, 524, ¶ 16, 81 P.3d 311, 315 (2003)
(holding that judicial policy requires “persons seeking redress
in the courts first to establish standing, especially in actions
government”); see also McKinley v. Reilly, 96 Ariz. 176, 183, 393
P.2d 268, 273 (1964) (observing that, generally, “only those who
are injured by the unconstitutional provision of a statute may
raise an objection as to its constitutionality”).
not provided any evidence that the funding mechanism set forth in
§ 23-1081(B) caused him any particular harm, let alone denied him
identified any instance where he was not afforded all of his
and in fact, our review of the record reveals that the ALJ took
care to accommodate virtually all of Applicant’s requests.
assuming that A.R.S. § 23-1081(B) in the abstract could motivate
the ICA to “engage in unfair claims processing practices, bad
faith legal defenses and judicial failure to consider evidence,”
we cannot find that any such conduct occurred here, let alone
that Applicant was the victim of any such behavior.
Applicant lacks standing to challenge the constitutionality of
A.R.S. § 23-1081(B). 2
For all of the foregoing reasons the award is affirmed.
LAWRENCE F. WINTHROP, Judge
PHILIP HALL, Presiding Judge
JON W. THOMPSON, Judge
We further note that Applicant never raised this issue
before the ALJ. Because of our resolution of the standing issue,
we need not reach the respondents’ argument that Applicant has
waived this issue on appeal.