Guttierez v. Industrial Commission of Arizona
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A state administrative rule provides that a physician should rate an injured worker's impairment using standards set forth in the "most recent edition" of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Appellee Jesus Gutierrez injured his back in 2007 while working for a framing company. His claim for workers' compensation was accepted and he received medical treatment. The treating physician later released Appellee to return to work with physical restrictions. Concluding that Appellee was not permanently impaired, the insurance carrier (the "carrier") closed the claim. Appellee requested a hearing to challenge the "no impairment" determination. At the Industrial Commission of Arizona (ICA) hearings, the Administrative Law Judge (ALJ) heard testimony from two physicians: Appellee's treating physician and one presented by the carrier. Appellee's physician relied on the Fifth Edition of the AMA Guides; the carrier's physician relied on the Sixth Edition. Based on the insurance carrier's expert, the ALJ found that the carrier did not err in closing Appellee's claim. On special review, the appellate court affirmed the ALJ's decision. The issue before the Supreme Court was framed to address whether "the most recent edition" as specified in the Arizona Administrative Rules refers to the edition that was most recent when the Rule was promulgated or the latest edition existing when the claimant's impairment was rated. The Supreme Court on review of the lower courts' decisions found that the Rule's "fair and sensible meaning" anticipated that the guides would change and that "an evolving standard was intended." The Court affirmed the award and decision of the ICA.
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SUPREME COURT OF ARIZONA En Banc JESUS GUTIERREZ, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, MASTERSON & CLARK FRAMING, INC. Respondent Employer, SCF ARIZONA, Respondent Carrier. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Arizona Supreme Court No. CV-10-0285-PR Court of Appeals Division One No. 1 CA-IC 09-0040 ICA Claim No. 20071-150489 Carrier Claim No. 0712694 O P I N I O N Special Action from the Industrial Commission of Arizona The Honorable Stephen W. Pogson, Administrative Law Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division One 226 Ariz. 1, 243 P.3d 604 (App. 2010) AFFIRMED ________________________________________________________________ CECIL A. EDWARDS, JR., ATTORNEY AT LAW Phoenix By Cecil A. Edwards, Jr. Attorneys for Jesus Gutierrez INDUSTRIAL COMMISSION OF ARIZONA By Andrew F. Wade, Chief Counsel Attorneys for Industrial Commission of Arizona Phoenix STATE COMPENSATION FUND By James B. Stabler, Chief Counsel Mark A. Kendall Deborah E. Mittelman Attorneys for Masterson & Clark Framing, Inc. and SCF Arizona Phoenix TOBY ZIMBALIST ATTORNEY AT LAW Phoenix By Toby Zimbalist Attorneys for Amicus Curiae Arizona Association of Lawyers for Injured Workers ________________________________________________________________ B E R C H, Chief Justice ¶1 An physician Arizona should administrative rate an injured rule provides worker s that impairment a using standards set forth in the most recent edition of the American Medical Association Impairment (AMA Guides Guides). to the Ariz. Evaluation Admin. Code of Permanent (A.A.C.) R20-5- 113(B). We must determine whether most recent edition refers to edition the that was most recent when the Rule was promulgated (the Fifth Edition) or the latest edition existing when the claimant s impairment was rated (in this case, the Sixth Edition). A.A.C. For the reasons set forth below, we hold that R20-5-113(B) refers to the edition most recently published before the claimant s impairment is rated and that this reference does not constitute an improper delegation of legislative authority. I. ¶2 for FACTUAL AND PROCEDURAL BACKGROUND Jesus Gutierrez injured his back in 2007 while working Masterson compensation treatment. return to & Clark benefits Framing. was accepted His and claim he for received workers medical The treating physician later released Gutierrez to work with physical restrictions. - 2 - Concluding that Gutierrez was not permanently impaired, the insurance carrier closed the claim. Gutierrez requested a hearing to challenge the no impairment determination. ¶3 the At the Industrial Commission of Arizona (ICA) hearings, Administrative physicians: Law Judge Gutierrez s (ALJ) treating doctor presented by the carrier. heard testimony orthopedic from surgeon two and a Relying on the Fifth Edition of the AMA Guides, Gutierrez s expert testified that Gutierrez suffered from a resolved Gutierrez s injury Relying the on as Sixth a lumbar five radiculopathy. percent Edition, which He permanent provides rated impairment. no permanent impairment rating for a resolved radiculopathy, the carrier s expert opined that Gutierrez had no ratable permanent impairment. ¶4 Based on the latter testimony, the ALJ found that the insurance carrier did not err in closing Gutierrez s claim. special action review, the court of appeals affirmed. Gutierrez v. Indus. Comm n, 226 Ariz. 1, 243 P.3d 604 (App. 2010). granted Gutierrez s petition for review On because We the interpretation of A.A.C. R20-5-113(B) is a recurring issue of statewide importance. See Ariz. Rev. Stat. (A.R.S.) § 12-120.24 (2003) (supreme court review); see also Ariz. Const. art. 6, § 5, cl. 3 (conferring jurisdiction). - 3 - II. A. DISCUSSION Interpreting most recent edition ¶5 The administrative rule at issue, A.A.C. R20-5-113(B), provides as follows: When a physician discharges a claimant from treatment, the physician [s]hall determine whether the claimant has sustained any impairment of function resulting from the industrial injury. The physician should rate the percentage of impairment using the standards for the evaluation of permanent impairment as published by the most recent edition of the American Medical Association in Guides to the Evaluation of Permanent Impairment, if applicable. We interpret the provisions de novo, apply[ing] the same rules in construing both statutes and rules. Smith v. Ariz. Citizens Clean Elections Comm n, 212 Ariz. 407, 412 ¶ 18, 132 P.3d 1187, 1192 (2006). ¶6 Guides The question presented is which edition of the AMA the edition. Rule means by its reference to the most recent The term most recent is commonly understood as giving perpetual duration to a statute or rule that relies on changing facts and new developments or would otherwise require frequent updating. Cf. City of Phoenix v. Superior Court (Ariz. State Hosp.), 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984) (preferring interpretation sensible meaning ). intended. that gives a statute a fair and This suggests that an evolving standard was Indeed, if the ICA had meant most recent edition to apply only to the Fifth Edition, it likely would simply have - 4 - identified that edition by number. We therefore read A.A.C. R20-5-113(B) as referring to standards in the edition of the AMA Guides most recently published before the claimant s impairment is rated. ¶7 This interpretation comports with the use of the phrase most recent in other rules and statutes. Several statutes and rules require submission or retention of most recent documents such as financial statements or receipts. See, e.g., A.R.S. § 3-609(A) (2002) (requiring submission of financial statements for the most recent complete fiscal year ); A.A.C. R20-5- 203(A)(3) (requiring submission of the most recent certified annual financial statement ); A.A.C. R20-2-707(E) (requiring retention of receipts for the three most recent deliveries of . . . motor fuel ). provisions to documents It would frustrate the purpose of those require (those submission existing when or the retention rule or of outdated statute became effective) despite the passage of time and the existence of more current documents. depends on data The from operation the most of several recent other census. statutes See, e.g., A.R.S. § 1-215(31) (2002 & Supp. 2010) (defining population based on the most recent United States decennial census ); A.R.S. §§ 5-110(I) (2002); 9-132 (2008); 11-254.02(A) (2001); 12-284.03 (2003 & Supp. 2010); 13-3826 (2010); 42-16153(A) (2006 & Supp. 2010); 48-3620(E) (2004 & Supp. 2010). - 5 - The legislature undoubtedly did not intend to require reliance on stale census data despite the completion of new decennial censuses. Provisions that use the term most recent therefore anticipate and incorporate changes and developments, even those that occur after the effective date of a statute or rule. ¶8 Historical practice of the ICA also suggests that most recent edition means the newest version extant when a claimant s impairment is rated. The prior version of the Rule, much like the current one, recommended that impairment be rated according to the standards for the evaluation of permanent impairment as published by the American Medical Association in Guides to the applicable. Evaluation of Permanent Impairment, 7 Ariz. Admin. Reg. 25 (Jan. 5, 2001). if Although the earlier version of the Rule did not include the words most recent edition, parties and courts regularly referred to each new edition as it became available. See, e.g., Simpson v. Indus. Comm n, 189 Ariz. 340, 341, 942 P.2d 1172, 1173 (App. 1997) (citing the Fourth Edition of the AMA Guides, adopted in 1993, even though the Second Edition was in effect when the then-current Thus, even version without of the the Rule addition was of promulgated the words in 1987). most recent edition, courts and practitioners were interpreting the Rule to recommend use of the contained that language. current edition as though the Rule It appears that the amending language - 6 - simply codified this accepted practice. ¶9 This interpretation also leads to the more sensible result. Reference to the current version of the AMA Guides allows the doctor to consider the latest medical developments when determining impairment. Gutierrez s reading of most recent edition, in contrast, would require the physician to look up A.A.C. R20-5-113(B), determine its effective date, find which version of the AMA Guides was the most recent edition when the Rule outdated, superseded impairment. of the became effective, version and of possibly rely on Guides when rating the an Reading the Rule as referring to the newest edition Guides precludes this impractical consideration of medical advancements. result and allows See State v. Estrada, 201 Ariz. 247, 251 ¶ 17, 34 P.3d 356, 360 (2001) (finding a result absurd if it is so . . . inconvenient that it cannot be supposed to ordinary have been intelligence within and the intention discretion ) of persons (internal with citation omitted). B. ¶10 Delegation of legislative power Gutierrez argues that if A.A.C. R20-5-113(B) refers to the version of the AMA Guides most recent when the claimant s impairment is rated, the Rule unconstitutionally delegates authority to the AMA to set the standards physicians must use to rate impairment. He contends - 7 - that although the Arizona Legislature delegated to the ICA the power to adopt rules regarding the presentation of compensation claims, see A.R.S. § 23-921(B) (1995), it could not delegate rulemaking authority to the AMA or empower the ICA to do so. ¶11 An improper delegation of legislative authority may occur when a statute (and, by implication, a rule) incorporates later-developed standards not promulgated by the Legislature or an Arizona agency. See State v. Williams, 119 Ariz. 595, 598- 99, 583 P.2d 251, 254-55 (1978) (observing that [s]ince the Legislature exercises absolutely no control over Congress or its agencies, an incorporation by state statute of rules, regulations, and statutes of federal bodies to be promulgated subsequent to the enactment of the state statute constitutes an unlawful delegation of legislative power ). If, however, a rule does not make later-developed standards mandatory, but merely recommends their use, then such permissive incorporation is not improper. See Bd. of Trs. of Emps. Ret. Sys. v. Mayor of Baltimore, 562 A.2d 720, 732 (Md. 1989) (upholding statute that incorporated an advisory determination because the agency was free to disregard it); Baughn v. Gorrell & Riley, 224 S.W.2d 436, 439 (Ky. 1949) (upholding statute in part because the outside standards guide[d] the public authorities, but did not bind them); cf. Indus. Comm n v. C & D Pipeline, Inc., 125 Ariz. 64, 67-68, 607 P.2d 383, 386-87 (App. 1979) (holding statute - 8 - unconstitutional because [i]t permits no discretion whatsoever in requiring public authorities to accept the terms of employment fixed by [labor unions] ). ¶12 The text of A.A.C. R20-5-113(B) indicates that the use of the AMA Guides in rating impairment is discretionary. The Rule provides that, in determining a claimant s impairment, the physician should use the AMA Guides if applicable. Use of these permissive qualifiers, particularly following use of the mandatory term shall in the preceding sentence, reveals that the physician is not required to apply the AMA Guides. See City of Mesa v. Salt River Project Agric. Improvement & Power Dist., 92 Ariz. 91, 102, 373 P.2d 722, 730 (1962) (refusing to read dissimilar terms to have the same meaning). ¶13 the This Court has previously recognized that the use of AMA Guides is discretionary and that impairment established by evidence other than the AMA Guides. 1 may be In W.A. Krueger Co. v. Industrial Commission of Arizona, we observed that [t]he AMA Guides are not to be blindly applied regardless of a claimant s actual physical condition. Rather, their purpose is to serve as a guideline in rating an impairment and [they] are valid when the stated percentage truly reflects the 1 These cases interpret the previous version of A.A.C. R20-5113(B) (formerly A.A.C. R20-5-113(D)), which was amended to the current form in 2001. Nothing in the 2001 amendment changed whether use of the AMA Guides is mandatory or discretionary. - 9 - claimant s loss. 150 Ariz. 66, 68, 722 P.2d 234, 236 (1986) (quoting Gomez v. Indus. Comm n, 148 Ariz. 565, 569, 715 P.2d 22, 26 (1986)); see also Slover Masonry, Inc. v. Indus. Comm n, 158 Ariz. 131, 136, 761 P.2d 1035, 1040 (1988) ( [W]hen other evidence requires a different result, a medical expert cannot bind the ALJ to unreasoning adherence to the AMA Guides. ); Cavco Indus. v. Indus. Comm n, 129 Ariz. 429, 432, 631 P.2d 1087, 1090 (1981) ( The AMA Guides apply only where they cover the specific impairment and where the percentage of impairment contained therein truly reflects the claimant s loss. ); Smith v. Indus. Comm n, 113 Ariz. 304, 307, 552 P.2d 1198, 1201 (1976) (observing that [s]ubjective complaints of pain are not within the scope of the AMA Guides, but are still compensable); see also Madrid v. St. Joseph Hosp., 928 P.2d 250, 259 (N.M. 1996) (finding no improper delegation of legislative authority in part because the AMA Guide ). Other sources have come to the same conclusion. See R. Lundmark, Todd of the discretionary Disability component Benefits, of in using Arizona Workers Compensation Handbook § 7.2.1.2 (Ray J. Davis et al. eds., 1992) (noting that [u]se of the Guides is not required . . . . When the Guides are inapplicable[,] other appropriate rating criteria including a physician s own clinical judgment and experience may be used ). ¶14 Because physicians are not - 10 - bound to apply the AMA Guides when rating impairment, the reference to later-developed editions of the AMA Guides in A.A.C. R20-5-113(B) does not constitute an improper delegation of legislative power. III. ¶15 CONCLUSION For the reasons set forth above, we affirm ¶¶ 1-15 of the opinion of the court of appeals 2 and affirm the award and decision of the ICA. __________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice 2 Although we affirm the opinion of the court of appeals, we do not adopt the suggestion in ¶ 16 and footnote five that the American Medical Association is, for separation of powers purposes, analogous to a state administrative agency. Further, the Court declined to review the court of appeals ruling that use of the Sixth Edition does not violate article 18, section 8, of the Arizona Constitution, and therefore our opinion reflects neither approval nor disapproval of ¶¶ 17-20 of the opinion. - 11 -
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