NOTICE:
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
DIVISION ONE
JOHN D. HAYDT,
Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF
ARIZONA,
Respondent,
FIFTY NINE MINUTE SERVICE, INC.,
Respondent Employer,
SPECIAL FUND/NO INSURANCE
SECTION,
Respondent Party in Interest.
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DIVISION ONE
FILED: 06/14/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
1 CA-IC 10-0033
DEPARTMENT A
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(Not for Publication –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
AWARD AFFIRMED
John D. Haydt
In Propria Persona
Mesa
Andrew F. Wade, Chief Counsel,
The Industrial Commission of Arizona
Attorneys for Respondent
Phoenix
The Industrial Commission of Arizona/Special Fund/
No Insurance Section
By Suzanne Scheiner Marwil
Attorney for Respondent Party in Interest
Phoenix
W I N T H R O P, Judge
¶1
This
is
a
special
action
review
of
an
Industrial
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.
following
reasons,
we
reject
the
constitutional
For the
challenge
and
affirm the ALJ’s finding of noncompensability.
FACTS AND PROCEDURAL BACKGROUND
¶2
2004,
Applicant is an electrician by trade.
Applicant
related
filed
injuries
and
employer,
Liberty
dismissed
Applicant’s
remaining
claims
noncompensable
a
with
seeking
Cooling
ICA,
Heating.
for
Liberty
Liberty
the
compensation
and
request
against
(“the
claim
a
2
alleging
from
his
workformer
The
ICA
eventually
hearing
and
found
Cooling
proceedings”).
court affirmed the ICA’s decision.
On November 23,
and
Heating
On
his
to
appeal,
be
this
See Haydt v. Liberty Cooling
& Heating, 1 CA-IC 08-20026 (Ariz. App. Feb. 19, 2009) (mem.
decision).
We upheld the ALJ’s findings that:
the claim for the
November 23, 2004 injury was properly dismissed as untimely; the
claim
for
the
July
19,
2005
injury
was
disposed
of
in
a
compromise and settlement agreement approved by the ICA; and most
pertinent to the instant appeal, the claim for the September 6,
2005 “electric shock”
injury
injuries”).
Applicant
Although
was
noncompensable
complained
of
(“the
Liberty
suffering
from
cognitive dysfunction as a result of these electric shocks, he
continued to work as an electrician after the final adjudication
in the Liberty proceedings.
¶3
Following
his
employment
with
Liberty
Cooling
and
Heating, Applicant was employed by Fifty Nine Minute Service,
Inc. (“Employer”) for a total of two months in 2005.
Thereafter,
he worked as a self-employed electrician under the business name
“Electric Man.”
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.
Applicant
complained
that
he
still
suffered
from
“many
neurological problems – caused by multiple, severe electrocutions
while
working.”
The
claim
was
sent
to
the
Special
Fund/No
Insurance Section of the ICA when it was determined that Employer
did not possess workers’ compensation coverage.
3
¶4
Thereafter, the ICA conducted a hearing at which the
same medical experts from the Liberty proceedings were called to
testify.
for
his
Although the experts had continued to treat Applicant
cognitive
impairment,
they
testified
that
they
were
unaware of Applicant having suffered any injury while working for
Employer.
At the hearing, Applicant was able to recall only five
specific instances of receiving a severe electric shock that he
contended
led
to
his
disease;
three
of
these
instances
had
already been litigated in the Liberty proceedings and the other
two,
he
Employer.
and
conceded,
occurred
years
before
he
had
worked
for
To support his argument that he had received a severe
compensable
shock
while
working
for
Employer,
Applicant
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;
however,
he
admitted that:
(1)
he had
never
told
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
been
shocked
while
working
for
Employer;
(4)
he
may
have
subsequently received a severe shock since leaving Employer and
operating
his
own
electrician
business;
and
(5)
most
of
the
evidence he relied on to prove his injuries was based on reports
and testimony from the Liberty proceedings.
4
Following completion
of the testimony, the parties were then allowed to file posthearing memoranda.
¶5
In
his
subsequent
decision
finding
that
Applicant’s
claims were noncompensable, the ALJ made the following relevant
findings:
(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
failed
to
prove
any
causal
connection
between
his
purported
neurological disorder and any injury suffered while working for
Employer.
Accordingly,
the
ALJ
held
that
Applicant
did
not
suffer a compensable injury or occupational disease while working
for Employer.
On review, the ALJ confirmed his findings and
award.
¶6
Applicant
submitted
a
timely
request
for
appellate
review. 1
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(B)
(2003) and 23-951 (1995).
1
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.
5
DISCUSSION
¶7
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.
¶8
Our
review
in
industrial
cases
is
“limited
to
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-
951(B).
favorable
We
review
the
facts
“in
sustaining the Commission’s award.”
a
light
most
Anton v. Indus. Comm’n, 141
Ariz. 566, 569, 688 P.2d 192, 195 (App. 1984).
review issues of law de novo.
¶9
to
We do, however,
See id.
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
the hearings.
See, e.g., Douglas Auto & Equip. v. Indus. Comm’n
of Ariz., 202 Ariz. 345, 347, ¶ 9, 45 P.3d 342, 344 (2002)
(noting
that
“although
[the
ALJ’s]
findings
exhaustive, they cannot simply state conclusions.
make
factual
findings
that
are sufficiently
6
need
not
be
Judges must
comprehensive
and
explicit for a reviewing court to glean the basis for the judge’s
conclusions”
(citation
omitted)).
In
finding
five,
the
ALJ
determined that Applicant “failed to prove to a reasonable degree
of medical or legal probability” that Applicant was working for
Employer as
required
by
A.R.S.
§
23-901.01
when
exposed to the hazard of severe electric shock.
determination, the ALJ:
he
was
last
To support his
(1) cited § 23-901.01; (2) noted that
Applicant has worked as an electrician since leaving Employer
and,
thus,
potentially
has
subjected
himself
to
severe
shock
after his employment with Employer; and perhaps most compelling,
(3)
noted
positive
he
that
Applicant
ever
received
himself
any
conceded
electrical
severe shock, while working for Employer.
that
he
shock,
let
was
not
alone
a
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
relevant evidence.
See Perry v. Indus. Comm’n, 112 Ariz. 397,
398, 542 P.2d 1096, 1097 (1975).
was
sufficiently
supported
by
In this case the ALJ’s finding
the
evidence
presented
at
the
hearing, and we have no reason to believe that the ALJ failed to
7
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.
¶10
Applicant
also
takes
issue
with
finding
six
of
the
award, arguing that the doctrine of res judicata should not have
been
applied
to
discount
the
testimony
witnesses, Dr. Yeamans and Dr. Bruce.
res
judicata
involves
a
does
not
different
apply
here
employer,
of
his
two
Applicant contends that
because
the
alleged
an
expert
instant
different
claim
electric
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
injuries.
also
Further, and perhaps most importantly, these experts
testified
Applicant
Liberty
that
suffered
injuries
they
while
had
were
not
working
aware
of
any
Employer.
been
already
for
litigated
new
injury
Because
to
a
the
final
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,
524,
P.3d
¶¶
11-12, 19
1237,
1240
(App.
2001)
(stating
that
“[i]ssue preclusion prevents a party from relitigating an issue”
which has already been litigated to a final judgment.); see also
8
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
res judicata).
¶11
The
noncompensability
of
the
Liberty
electrical
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
with Employer.
Applicant presented only that expert testimony he
utilized in the Liberty proceedings, and has not demonstrated on
appeal
why
the
relitigating
the
doctrine
cause
injures in that claim.
on
or
res
judicata
compensability
does
of
not
the
foreclose
electrical
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.
¶12
could
More to the point, based upon this record, the ALJ
easily
conclude
that
Applicant
was
not
injured
while
working for Employer, and we will not substitute our view of the
9
evidence for that of the ALJ.
See Glodo v. Indus. Comm’n, 191
Ariz. 259, 262, 955 P.2d 15, 18 (App. 1997).
¶13
A.R.S.
Finally,
§
Applicant
23-1081(B)
for
the
first
unconstitutional
is
argues
and
has
time
that
violated
his
constitutional rights to due process, equal protection and also
violates
the
state
supremacy clauses.
constitution’s
workers’
compensation
and
In relevant part, § 23-1081(B) states:
The administrative fund shall be no less than
self-supporting with respect to the expenses
of
the
industrial
commission
and
other
expenditures from the administrative fund as
provided under this chapter.
Unless the
special fund . . . is not on an actuarially
sound basis . . . any surplus or deficit in
the revenue provided under § 23-961 above or
below
the
expenses
of
the
industrial
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.
On
notice from the industrial commission to the
state
treasurer,
the
surplus
shall
be
transferred to the special fund.
(Emphasis
added).
effectively
special
requires
fund
administrative
in
Applicant
the
order
funds.
to
ICA
contends
to create
avoid funding
This,
that
a
surplus
it
Applicant
this
out
through
argues,
language
of
the
the
ICA’s
motivates
employees of the ICA to engage in hostile behavior towards and
10
unfair denial of claimants seeking workers’ compensation from the
special fund.
¶14
There is no evidence that Applicant has been palpably
and personally injured by this statute, and therefore, he lacks
standing
to
contest
its
constitutionality.
See
Bennett
v.
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
in
which
constitutional
relief
is
sought
against
the
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”).
Applicant has
not provided any evidence that the funding mechanism set forth in
§ 23-1081(B) caused him any particular harm, let alone denied him
of
any
of
his
constitutional
rights.
Applicant
has
not
identified any instance where he was not afforded all of his
constitutional
protections
throughout
the
instant
proceedings,
and in fact, our review of the record reveals that the ALJ took
care to accommodate virtually all of Applicant’s requests.
Even
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
11
that Applicant was the victim of any such behavior.
Accordingly,
Applicant lacks standing to challenge the constitutionality of
A.R.S. § 23-1081(B). 2
CONCLUSION
¶15
For all of the foregoing reasons the award is affirmed.
_________________________________
LAWRENCE F. WINTHROP, Judge
CONCURRING:
_______________________________
PHILIP HALL, Presiding Judge
_______________________________
JON W. THOMPSON, Judge
2
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.
12
