CARTER v. ICA/HARRAH'S

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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 ) ) ) Petitioner, ) ) v. ) THE INDUSTRIAL COMMISSION OF ARIZONA, ) ) ) Respondent, ) ) HARRAH S ARIZONA CORPORATION, ) ) Respondent Employer, ) ) AMERICAN ZURICH INSURANCE CO., ) ) Respondent Carrier, ) ) SPECIAL FUND DIVISION/NO INSURANCE ) SECTION, ) ) Respondent Party in Interest. ) VALERIE CARTER, DIVISION ONE FILED: 10/25/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-IC 12-0001 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20103-360061 Carrier Claim No. WC930727907 Administrative Law Judge Joseph L. Moore AWARD AFFIRMED Crossman Law Offices, P.C. By Harlan J. Crossman Attorneys for Petitioner Employee Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Gordon & Rees, LLP By Matthew G. Kleiner Attorneys for Respondent Employer Phoenix Lester & Norton, P.C. By Steven C. Lester Attorneys for Respondent Carrier Phoenix Special Fund Division/No Insurance Section The Industrial Commission of Arizona By Miral A. Sigurani Attorney for Respondent Party in Interest Phoenix G O U L D, Judge ¶1 This Commission is of a special Arizona action ( ICA ) review order of an Industrial dismissing petitioner Valerie Carter s claim for lack of subject matter jurisdiction. One issue is jurisdiction presented to determine on appeal: Carter s whether the entitlement to ICA had Arizona workers compensation benefits for an injury she sustained while employed by the respondent employer, Harrah s Arizona Corporation ( Harrah s ), at the Ak-Chin Casino Resort on Indian tribal land. Because we find Carter was an employee of an Ak- Chin tribal casino enterprise at the time of her industrial 2 injury and she was covered by that entity s workers compensation insurance, we affirm the award. I. JURISDICTION AND STANDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (2012), and Arizona Rule of Procedure for Special Actions 10 (2009). In reviewing findings and awards of the ICA, we defer to the factual findings made by the administrative law judge ( ALJ ), but review questions of law de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). II. PROCEDURAL AND FACTUAL HISTORY On December 1, 2010, 1 Carter filed a worker s report ¶3 of injury. injury on Carter asserted she had sustained an industrial February 13, 2010, while employed by Harrah s. Carter stated that while she was reaching up to move a box on top of a cabinet, she stepped backwards into an indention in the carpet, and fell to the floor injuring her neck, low back, and right knee. 1 Carter filed an almost identical worker s report of injury on December 7, 2010. 3 ¶4 An investigation of Carter s claim revealed that Harrah s was operating as a tribal enterprise of the Ak-Chin Indian Community and, as a result, Carter s claim was a tribal workers compensation claim. workers compensation compensation Hudson claim carrier, accepted Tribal First processed Carter s on behalf Hudson Carter s of Ak-Chin s Insurance claim and Group began workers ( Hudson ). paying temporary disability benefits to her. ¶5 Eventually Carter sought to file a new, second claim with the ICA. Because Harrah s did not appear to have workers compensation coverage Carter s claim new was for its activities referred to the on tribal respondent land, party in interest, Special Fund Division/No Insurance Section ( Special Fund ). ¶6 After the Special Fund notified Harrah s of Carter s new claim, a Tribal First claims adjuster contacted the ICA and stated that disability Hudson benefits had for already this paid same Carter both February 13, medical 2010 claim. The adjuster also noted that Carter s claim has been out of the ordinary; she explained . . . [Carter] was treated for her injury and the treating physician stated she had reached MMI [maximum medical improvement] on 9/30/10. He released her to work with restrictions. . . . [Carter s] employer could and did accommodate her requirements/restrictions but . . . [she] refused the job and refused to return to work. 4 and . . . [Carter] was terminated by her employer because her FMLA had run out. [Carter] has seen 6 different doctors for her injury. . . [she] found a doctor willing to do surgery and put the cost of that care on her personal insurance. There was no request for a change in doctors submitted to Tribal First and no approval for surgery from Tribal First. ¶7 The Special Fund denied Carter s claim stating that tribal coverage applied. Carter then requested an ICA hearing asserting that she had sustained an injury arising out of and in the course of her employment under Arizona jurisdiction. An ICA hearing was subsequently scheduled. ¶8 The Special Fund moved to join the respondent carrier, American Zurich Insurance Company ( American Zurich ), after discovering that it had issued an Arizona workers compensation policy to Harrah s. The ALJ granted the motion. The Special Fund also moved to join Harrah s in the litigation. Harrah s responded in opposition to joinder and filed a motion to dismiss for lack of jurisdiction. ¶9 The ALJ held one hearing for oral argument on all of the parties outstanding motions. Following the hearing, the ALJ entered an order dismissing Carter s claim against Harrah s and American Zurich for lack of subject matter jurisdiction. In his dismissal order, the ALJ specifically adopted portions of both Harrah s Motion to Dismiss and American Zurich s July 14, 5 2011 Response in Support of Harrah s Arizona Motion to Dismiss for Lack of Jurisdiction. 2 Corporation s Carter timely requested administrative review, but the ALJ summarily affirmed his award. Carter next brought this appeal. III. DISCUSSION ¶10 Carter first argues the ALJ erroneously found Ak-Chin and Hudson were indispensable parties. She bases this argument on her supposition that she was solely the employee of Harrah s, an Arizona corporation, and therefore, she was insured by its workers compensation carrier, American Zurich. The evidence of record in this case includes a Management Agreement (Casino) between the Ak-Chin Indian Community and Harrah s Arizona Corporation dated December 19, 2001. ( Management Agreement ) This agreement was entered into between Ak-Chin, a federally recognized Indian tribe, and Harrah s to obtain Harrah s technical expertise for the operation of the Ak-Chin casino, which Ak-Chin owns and operates on its tribal land. The Management Agreement required the tribe s casino enterprise to maintain statutory workers compensation insurance coverage for enterprise workers employees compensation and Harrah s insurance 2 to maintain coverage for statutory manager s See Hester v. Indus. Comm n, 178 Ariz. 587, 589-90, 875 P.2d 820, 822-23 (App. 1993)(ALJ may incorporate parties memoranda in his award by reference). 6 employees. Enterprise employees are defined as all employees assigned to work at the casino enterprise, which includes both the casino and the hotel. ¶11 Based on this evidence, Carter correctly argues that she was an employee of Harrah s, but only as an employee of Harrah s Ak-Chin Casino Resort, an economic enterprise of the Ak-Chin Indian Community. Arizona has recognized that Indian tribes/communities are independent sovereigns, not subject to the jurisdiction of Arizona courts without either the tribe s consent or the consent of Congress. Morgan v. Colo. River Indian Tribe, 103 Ariz. 425, 428, 443 P.2d 421, 424 (1968). 3 As an economic enterprise of the Ak-Chin Indian Community, Harrah s Ak-Chin Casino Resort was entitled to the same immunity afforded to the Ak-Chin Indian Community. sovereign See White Mountain Apache Indian Tribe v. Shelly, 107 Ariz. 4, 7, 480 P.2d 654, 657 (1971)(finding subordinate economic organization of Indian tribe shares the same immunity from suit as the tribe). For these reasons, Harrah s Ak-Chin Casino Resort is not an employer subject to Arizona s workers compensation laws. 3 The only consent to any Arizona jurisdiction in this case is contained in the Management Agreement and is for the arbitration of disputes in the Community Court, or in the United States District Court . . . the United States Court of Appeals for the Ninth District, and the United States Supreme Court . . . arising out of this Agreement. 7 ¶12 under Carter the precluded next tribal from argues workers receiving that despite compensation additional Workers Compensation Act. accepting policy, benefits benefits she under is not Arizona s As authority for her position, she cites Agee v. Industrial Commission, 10 Ariz. App. 1, 455 P.2d 288 (App. 1969); Jordan v. Industrial Commission, 117 Ariz. 215, 571 P.2d 712 (App. 1977); and Lowery v. Industrial Commission, 123 Ariz. 108, 597 P.2d 1011 (App. 1979). We find each of these cases distinguishable. ¶13 In each of these cases, the issue was whether a workers compensation claimant could receive additional workers compensation benefits in Arizona after initially receiving benefits in another state from the same employer and carrier. None of the cases involved a claimant injured while working at a tribal enterprise, on tribal land, covered by a tribal workers compensation policy, who subsequently sought additional benefits from a different employer and carrier in Arizona. Further, in each of the three cases, the employer who initially paid the claimant benefits in another state was also subject to Arizona jurisdiction. Carter s In this case, although Ak-Chin previously paid workers compensation subject to Arizona jurisdiction. 8 benefits, it is clearly not ¶14 Carter last argues that the ICA had jurisdiction over her and her employer, Harrah s, at the time of her industrial injury. In that regard, the ALJ adopted the arguments of Ak- Chin and American Zurich that Carter had waived any right to claim Arizona workers compensation benefits. When Carter filed her initial workers compensation claim, she identified herself as a total rewards supervisor at Harrah s Phoenix Ak-Chin Casino Resort. She further identified carrier as Tribal First. the workers compensation She filed a claim for workers compensation benefits with Tribal First and received $45,000 of medical and disability benefits from Hudson before her claim was closed. For these reasons, we agree Carter chose her remedy through her employment at the tribal enterprise and cannot now disclaim that employment to seek additional benefits. See Ashton v. Sierrita Mining and Ranching, 21 Ariz. App. 303, 305, 518 P.2d 1020, 1022 (App. 1974)(plaintiff who claimed mining and ranching partnership as his employer for purpose of receiving workers compensation benefits was estopped from later claiming that partnership was not in fact his employer in tort action). 9 ¶15 For all of the foregoing reasons, the award affirmed. /S/________________________________ ANDREW W. GOULD, Judge CONCURRING: /S/______________________________ MICHAEL J. BROWN, Presiding Judge /S/_______________________________ DONN KESSLER, Judge 10 is

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