St. Luke's Hosp., cna/insurance v. Indus. Com'n , 114 Ariz. 118 ( 1976 )

FROEB, P. J. and HAIRE, Chief Judge,

Division 1, concurring.

MOTION FOR REHEARING

The motion for rehearing of the respondent, The Industrial Commission of Arizona, filed by its Chief Counsel, John H. Budd, Jr., and the objections to rehearing filed by petitioners were considered by the Court, consisting of Presiding Judge Eino M. Jacobson and Judges Levi Ray Haire and Donald F. Froeb. The Court notes that no motion for rehearing was filed by the respondent employee, Shirley E. Ritchey.

Because a motion for rehearing was not filed by the respondent employee, who was the real party in interest in this matter, and the Industrial Commission’s motion for rehearing being the first occasion that it has appeared in this matter in an advocacy position, the Court desires to make some general observations concerning the propriety of the Industrial Commission’s standing in this litigation.

The Court notes with approval the various legislative enactments, starting with the separation of the State Compensation Fund from the Industrial Commission and culminating in the creation of hearing officers to determine contested issues involving Workmen’s Compensation laws in this state and the withdrawal of the members of the Commission from this decisional process, that litigated matters before this administrative agency have acquired that status of impartiality to litigants appearing before it associated with Superior Court Judges in judicial proceedings. The Court applauds the judicious and impartial manner in which contested proceedings are generally conducted by hearing officers as the adjudicatory branch of the Industrial Commission.

Moreover, the Court is aware that on occasion, because of legal positions assumed by the parties appearing before the Commission, the Industrial Commission has a legitimate interest in appearing as an advocate in this court to defend the integrity of the Special Fund, to defend the Commission’s procedures and to assist the Court in reaching a correct result where matters involving the general interest of the Commission in carrying out its statutory authority or policies are concerned. The Court is further aware that drawing the line between its impartial adjudicatory function on the one hand and its legitimate interest as an advocate before this Court on the other, is a delicate one.

However, the Court cannot help but note that in this matter, it is unable to ascertain any direct interest of the Commission in the resolution of the disputes between the petitioning employer, its insurance carrier and the respondent employee, that more properly could not have been brought to the attention of the Court by the respondent employee, who was ably represented by counsel throughout the proceedings before this Court. In fact, the failure of the respondent employee to timely seek rehearing of our decision in this matter, may be taken as tacit approval by the respondent employee of the factual and legal resolution of the issues presented by the Petition for Special Action—Industrial Commission.

While the Commission’s motion for rehearing has assumed an advocacy position on behalf of one of the litigants which appeared before it, and by reason of our opinion will appear before it again, the Commission in an improper response to the respondent’s Objection to Motion for Rehearing, attempts to justify this posture by reason of its concern over the validity of settlement agreements coming before it. In our opinion, the Commission’s Motion for Rehearing does not indicate such a justifiable intervention in this matter. Such a stance by the Commission in this matter can only result in impugning the judicial posture of its hearing officers.

It is ordered that the motion for rehearing is denied.