Hurley v. Industrial Commission

681 P.2d 463, 140 Ariz. 311, 1983 Ariz. App. LEXIS 715
CourtCourt of Appeals of Arizona
DecidedOctober 6, 1983
DocketNo. 1 CA-IC 2874
StatusPublished
Cited by1 cases

This text of 681 P.2d 463 (Hurley v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurley v. Industrial Commission, 681 P.2d 463, 140 Ariz. 311, 1983 Ariz. App. LEXIS 715 (Ark. Ct. App. 1983).

Opinion

OPINION

CONTRERAS, Presiding Judge.

This is a special action review of an April 16, 1982, Industrial Commission award suspending and reinstating benefits. The sole issue concerns the effective date of the reinstatement: should it be when the written request for approval to leave Arizona was filed, when the Industrial Commission first acted on the request, or when the Industrial Commission by its April 16, 1982, award actually granted claimant permission to leave the state. The administrative law judge concluded that the effective date was when permission was actually granted. We agree and affirm the award.

In June 1980, the petitioner (claimant) had a compensable back injury. He was receiving active medical treatment and compensation when, on September 29, 1981, his attorney in a letter to the Industrial Commission requested permission for claimant to leave Arizona. This letter did not state any reason why claimant was [312]*312requesting permission to leave the state although it did state that claimant “has received medical permission from his treating physician to leave the state____” Approximately two weeks later, and without written approval from the Industrial Commission, the claimant left Arizona and went to Colorado. On November 2, 1981, the respondent carrier issued a notice of suspension of benefits effective October 3, 1981 because claimant had left the state without the written approval of the Industrial Commission. On November 30, 1981, the Industrial Commission denied the request to leave Arizona based upon its finding that “said applicant’s attending physician has indicated that the applicant’s condition contraindicates applicant leaving the area in which treatment is being rendered.” The claimant timely protested both the suspension and this denial. A hearing was held in which evidence was presented from which the administrative law judge found that “applicant’s treating Arizona physician did not feel that it was contraindicated for the applicant to move to Colorado ...” and that he “left the State of Arizona for compelling financial reasons ...” and that “[bjecause of compelling financial reasons, the applicant should be and is by this decision granted permission to reside in Colorado.” It is clear from the record that claimant did not have Commission approval to leave this state until the administrative law judge issued the award on April 16, 1982.

In essence and by way of summarization, the award granted claimant permission to reside in Colorado and reinstated benefits from the date of the award. In this regard, the dispositive finding states in relevant part:

5. ... Arizona case law has stressed the plain meaning of A.R.S. § 23-1071 and has declined to create exceptions to this rule. Waxler v. Industrial Commission, 116 Ariz. 213 (App.), 568 P.2d 1111 (1977). Leaving the State of Arizona while a request for permission to do so is being administratively processed is not synonymous with leaving the State of Arizona with the agreement of the insurance carrier and written approval of The Industrial Commission. While the evidence establishes that the applicant left the State of Arizona for compelling financial reasons, it also establishes that the applicant’s departure was without the agreement of the insurance carrier or employer and the written approval of the Commission. Because of compelling financial reasons, the applicant should be and is by this decision granted permission to reside in Colorado. However, because the applicant’s absence from the State has been unlawful and without approval, his right to compensation benefits, as well as his right to reimbursement for medical expenses, is forfeited to the date of this Award (that being the first time that the applicant has been absent from the State with permission). See Continental Casualty Co. v. Industrial Commission, supra.

This award was affirmed on administrative review, and this special action — Industrial Commission followed presenting the question concerning the effective date that benefits should be reinstated with claimant contending that the effective date should be the date he requested permission from the Industrial Commission to leave. The employer and carrier contend that the effective date should be the date the award was issued. We interject as a third possible effective date the date upon which the Industrial Commission first acted upon claimant’s request. We first examine what we consider is the controlling statute.

A.R.S. § 23-1071(A) provides:

No employee may leave the state of Arizona for a period exceeding two weeks while the necessity of having medical treatment continues, without the written approval of the commission. Any employee leaving the state of Arizona for a period exceeding two weeks without such approval will forfeit his right to compensation during such time, as well as his right to reimbursement for his medical expenses, and any aggravation of his disability by reason of the [313]*313violation of this section, will not be compensated.1

The administrative law judge accurately observed that A.R.S. § 23-1071(A) has been consistently applied as written. Our supreme court has described it as “plain language” not requiring “construction or interpretation.” Continental Casualty Co. v. Industrial Commission, 113 Ariz. 116, 118, 547 P.2d 470, 472 (1976). Accordingly, no exceptions to the requirement of written Industrial Commission approval have been recognized. Approval from the treating physician alone is insufficient. Frantz v. Industrial Commission, 21 Ariz.App. 73, 515 P.2d 898 (1973); Hesser v. Industrial Commission, 21 Ariz. App. 498, 520 P.2d 1175 (1974). Forfeiture applies even though the claim had not yet been accepted for benefits when the claimant left Arizona. Waxler v. Industrial Commission, 116 Ariz. 213, 568 P.2d 1111 (App.1977). It applies even if the claimant subsequently applies for and receives approval to leave Arizona. Continental Casualty Co. v. Industrial Commission, 113 Ariz. 116, 547 P.2d 470 (1976).

The claimant argues that he complied with § A.R.S. 23-1071(A) by applying for approval before leaving Arizona. Although it is clear that claimant sought approval to leave the state prior to leaving, it is equally clear that written approval from the Industrial Commission had not been obtained at the time claimant left. The statute states that written Industrial Commission approval is required to leave Arizona. As the administrative law judge correctly observed, an application for approval is not the same as written approval.

Although Continental Casualty Co.

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Related

Hurley v. Industrial Commission
681 P.2d 377 (Arizona Supreme Court, 1984)

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Bluebook (online)
681 P.2d 463, 140 Ariz. 311, 1983 Ariz. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurley-v-industrial-commission-arizctapp-1983.