CIGNA/ESIS v. OTT

Annotate this Case

Download PDF

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 CIGNA CORPORATION, ) ) Petitioner Employer, ) ) ESIS/ACE USA (AZ), ) ) Petitioner Carrier, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) ANDEÃ OTT, ) ) Respondent Employee, ) __________________________________) DIVISION ONE FILED: 5/21/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-IC 12-0058 Department E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 93055-284277 Carrier Claim No. C780C9447995811 Karen Gianas, Administrative Law Judge AWARD SET ASIDE _______________________________________________________________ Klein, Doherty, Lundmark, Barberich & La Mont, P.C. Tucson By Eric W. Slavin Attorneys for Petitioner Employer and Petitioner Carrier AndeÃ© Ott, In Propia Persona Respondent Employee Phoenix ________________________________________________________________ N O R R I S, Judge ¶1 In Commission this of special Arizona action award and review decision of an upon Industrial review, Cigna Corporation, as the petitioner employer, and ESIS/ACE USA (AZ), as the petitioner carrier (collectively Carrier ), argue the administrative law judge ( ALJ ) should not have awarded AndeÃ© Ott, respondent employee, supportive care because the ALJ did not have jurisdiction to do so. The issue raised by the Carrier is one of law, and thus is subject to our de novo review. Young v. Indus. Comm n of Ariz., 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). ¶2 Carrier Ott As we explain, we agree with the Carrier. sustained eventually an closed industrial her claim injury in 1993. with an The unscheduled permanent partial impairment, and in 2002, authorized supportive care. By a notice of claim status mailed May 5, 2011 ( May NCS ), the Carrier closed the supportive care relying on a medical report by Zoran Maric, M.D., who, after conducting an independent medical examination of Ott, concluded she did not have a clinical condition that would require ongoing supportive care. Although the May NCS advised Ott that if she disagreed with the Carrier s action, she could request a hearing if she did so within 90 days after its mailing date, Ott did not do so. 2 Instead, Ott requested a hearing two days after expiration of the 90-day period. ¶3 Over the Carrier s objection, the ALJ treated Ott s request for a hearing as a request for supportive care under Arizona Revised Statute ( A.R.S. ) section 23-1061(J) (Supp. 2012), a statute that authorizes the Industrial Commission to investigate and review any claim in which it appears to the commission that the claimant has not been granted the benefits to which such claimant is entitled. After considering testimony from Ott, her attending physician, Allan L. Rowley, M.D., and Dr. Maric, the ALJ found Ott was entitled to supportive care and affirmed that decision upon review. ¶4 The ALJ was not entitled to treat Ott s request for a hearing as a request for supportive care under A.R.S. § 23- 1061(J). The Arizona workers compensation system is designed to carriers allow to make unilateral benefit determinations, which are subject to a claimant s right to protest and request a hearing within 90 days. A.R.S. § 23-1061(F) (insurance carrier shall promptly report to the commission and to the employee by mail . . . any denial of a claim, any change in the amount of compensation and the termination thereof ); A.R.S. § 23-947(A) (2012) (establishing 90-day deadline); A.R.S. § 23-901(5) (2012) (compensation means the compensation and benefits provided by [workers compensation] chapter ). 3 If a party does not timely request a hearing within the allotted time, the notice of claim status becomes final and res judicata to all parties. § 23-947(B); see also Church of Jesus Christ of A.R.S. Latter Day Saints v. Indus. Comm n of Ariz., 150 Ariz. 495, 498, 724 P.2d 581, 584 (App. 1986). 1 ¶5 treated When a notice of claim status becomes final, it is the Commission. same way as any other award of the Industrial Maricopa Cnty. v. Indus. Comm n of Ariz., 134 Ariz. 159, 162, 654 P.2d 307, 310 (App. 1982); Phoenix Cotton Pickery v. Indus. Comm n, 120 Ariz. 137, 138, 584 P.2d 601, 602 (App. 1978) ( A.R.S. § 23-947 gives the same final effect to unprotested Notices of Claim Status as is given to awards of the Industrial Commission which becomes final. ); see also Special Fund Div./No Insurance Section v. Indus. Comm n of Ariz., 226 Ariz. 498, 500-01, ¶¶ 15-16, 250 P.3d 564, 566-67 (App. 2011) (unchallenged final notice of claim analogous to post-hearing ALJ award). status is legally Our supreme court has held a party may not employ A.R.S. § 23-1061(J) to collaterally attack the Commission. findings, or awards of the Industrial Massie v. Indus. Comm n, 113 Ariz. 101, 104, 546 P.2d 1132, 1135 (1976). 1 orders, Res judicata, relitigation of a claim been decided. Western Ariz. 514, 518, 698 P.2d Accordingly, a party may not employ also known as claim preclusion, bars actually decided or one that could have Cable v. Indus. Comm n of Ariz., 144 759, 763 (App. 1985). 4 A.R.S. § 23-1061(J) to collaterally attack a notice of claim status, which has become final and is entitled to be treated the same as any other final Industrial Commission award. ¶6 Here, Ott failed requisite 90 days. to request a hearing within the If Ott had timely requested a hearing, she would have been entitled to contest the Carrier s termination of supportive care. But, because she did not do so, the May NCS became final and the ALJ did not have jurisdiction to consider the matter[] determined in the notice, Phoenix Cotton Pickery, 120 Ariz. whether at she 139, was 584 P.2d entitled at to 603, which supportive physical condition as of May 5, 2011. in care this was on based case her The ALJ s decision to treat Ott s untimely request for a hearing as a request for a hearing under collaterally A.R.S. attack § the 23-1061(J), May NCS. thus allowed Under the Ott to foregoing authorities, this was impermissible and Ott was not entitled to relief under A.R.S. § 23-1061(J). ¶7 Our workers compensation statutes attempt to balance finality with remedial principles. Thus, a claimant may reopen a claim to secure additional benefits if he or she can show a change in physical circumstances or medical evaluation creates a need for treatment, and the legitimacy of that need was not and could not have been adjudicated at the time of the last award. Stainless Specialty Mfg. Co. v. 5 Indus. Comm n of Ariz., 144 Ariz. 12, 18-19, 695 P.2d 261, 267-68 (1985). Thus, as relevant, A.R.S. § 23-1061(H) states: On a claim that has previously been accepted, an employee may reopen the claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting a reopening of the employee s claim upon the basis of a new, additional or previously undiscovered temporary or permanent condition. ¶8 Accordingly, if Ott had been able to prove she had experienced a change in her physical condition that warranted supportive care after May 5, 2011, her request that the ALJ order the Carrier to continue the supportive care would not be barred. 105-06, burden See Lovitch v. Indus. Comm n of Ariz., 202 Ariz. 102, ¶ 17, to 41 prove P.3d 640, reopening 643-44 (App. warranted). 2002) (claimant Although Dr. has Rowley testified Ott s supportive care should be continued, he did not testify her physical condition had changed after the May NCS became final. Indeed, in a June 10, 2011 letter he wrote to the Carrier, which Ott introduced into evidence, Dr. Rowley stated Ott s symptoms have not changed discontinue her use of medications. 6 and I see no reason to ¶9 the Therefore, for the foregoing reasons, we agree with Carrier the supportive care. ALJ did not have jurisdiction to grant Ott We therefore set aside the award. 2 /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 2 In her answering brief, Ott argues the Industrial Commission misinformed her that her request for a hearing would be considered timely as long as she mailed it and it was postmarked by the deadline date. Ott did not raise this argument before the ALJ and it is not, therefore, properly before us. Magma Copper Co. v. Indus. Comm n of Ariz., 139 Ariz. 38, 49, 676 P.2d 1096, 1107 (1983). Ott also argues her request for a hearing was timely, relying on what appears to be a rule promulgated by the United States Supreme Court. That rule has no applicability to workers compensation proceedings. 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.