Linda Bell v. Ica/ Maricopa Cty/ Pinnacle Risk

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
LINDA BELL,
Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
MARICOPA COUNTY,
Respondent Employer,
PINNACLE RISK MANAGEMENT,
Respondent Carrier.
No. CV-14-0095-PR
Filed January 30, 2015
Appeal from the Industrial Commission of Arizona
The Honorable Margaret A. Fraser, Administrative Law Judge
No. 20100-690290
AWARD SET ASIDE
Opinion of the Court of Appeals, Division One
234 Ariz. 113, 317 P.3d 654 (App. 2014)
VACATED
COUNSEL:
Brian I. Clymer (argued), Brian Clymer Attorney at Law; Matt C. Fendon,
Janell Youtsey, J. Victor Stoffa, Fendon Law Firm, Phoenix, for Linda Bell
Scott H. Houston (argued), Jardine, Baker, Hickman & Houston, P.L.L.C.,
Phoenix, for Maricopa County and Pinnacle Risk Management
Toby Zimbalist, Phoenix, for Amicus Curiae Arizona Association of
Lawyers for Injured Workers
BELL V. ICA, ET AL.
Opinion of the Court
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, and JUSTICES BERCH, BRUTINEL, and
TIMMER joined.
VICE CHIEF JUSTICE PELANDER, opinion of the Court:
¶1 As part of Arizona’s workers’ compensation statutes, A.R.S.
§ 23-1062(B) directs when an injured employee becomes entitled to
compensation for lost wages due to a work-related injury and how such
compensation is payable thereafter. We hold that the waiting period for
compensation set forth in § 23-1062(B) applies to claims for all types of
disability, including both temporary partial disability (“TPD”) under A.R.S.
§ 23-1044(A) and temporary total disability (“TTD”) under A.R.S.
§ 23-1045(A). We further hold that § 23-1062(B) does not require proof of
an initial period of TTD, but does require proof of seven consecutive days
of some type of work-related disability before an injured employee becomes
entitled to compensation for any type of disability, including TPD.
I.
¶2 Linda Bell was injured at her job at the Maricopa County
Public Defender’s Office in February 2010. She continued working after her
injury, but missed work intermittently over the next seventeen months to
attend medical appointments and receive treatment. Bell used sick leave
and vacation time during that time to avoid loss of income. In July 2011,
she underwent surgery for her injury and thereafter was off work for
several months.
¶3 Bell requested a hearing before the Industrial Commission of
Arizona (“ICA”) on whether she was entitled to TPD compensation to
reimburse her for the sick leave and vacation time she had used during the
seventeen months following her injury. The Administrative Law Judge
(“ALJ”) denied Bell’s request for TPD compensation after an evidentiary
hearing, finding that she “ha[d] not submitted any medical evidence that
she [had been] taken off work during the time period for which temporary
compensation benefits are requested.” Although Bell testified that the
aggregate time she missed from work during the seventeen months
amounted to more than seven days, the ALJ found that Bell “did not miss
any period of time over one week,” and that her employer had
accommodated all her medical restrictions. In addition, the ALJ concluded
that § 23-1062(B) limits compensation to those employees who can
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BELL V. ICA, ET AL.
Opinion of the Court
demonstrate that their “injury cause[d] total disability for more than seven
days.” The ALJ summarily affirmed the decision upon review.
¶4 The court of appeals affirmed the ALJ’s award and decision
upon review. Bell v. Indus. Comm’n, 234 Ariz. 113, 114 ¶ 1, 317 P.3d 654, 655
(App. 2014). The court held that “the waiting period created by A.R.S. § 23-
1062(B) must be satisfied by temporary total disability rather than
temporary partial disability,” and “by temporary total disability on
consecutive working days.” Id. at 115–16 ¶¶ 12, 16, 317 P.3d at 656–57.
Thus, the court upheld the ALJ’s findings that Bell was not entitled to TPD
compensation because she failed to prove she had satisfied § 23-1062(B)’s
waiting period. Id. at 117 ¶¶ 17, 19, 317 P.3d at 658.
¶5 We granted review because the legal issues presented are of
statewide importance, potentially affecting other workers’ compensation
claims. We have jurisdiction pursuant to Article 6, Section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.
II.
¶6 The issues presented are (1) whether the waiting period of
§ 23-1062(B) precludes a claim for TPD compensation without prior total
disability, and, if not, (2) whether consecutive days of lost time from work
are required to prove entitlement to TPD compensation. We review de
novo the meaning of § 23-1062(B) and its applicability to § 23-1044(A). See
In re Estate of Riley, 231 Ariz. 330, 332 ¶ 9, 295 P.3d 428, 430 (2013).
A.
1.
¶7 If a statute’s language is subject to only one reasonable
meaning, we apply that meaning. J.D. v. Hegyi, 236 Ariz. 39, 40–41 ¶ 6, 335
P.3d 1118, 1119–20 (2014). When the language can reasonably be read more
than one way, however, we may consider the statute’s subject matter,
legislative history, and purpose, as well as the effect of different
interpretations, to derive its meaning. See Baker v. Univ. Physicians
Healthcare, 231 Ariz. 379, 383 ¶ 8, 296 P.3d 42, 46 (2013). Moreover, when
statutes such as §§ 23-1044 and -1062 “relate to the same subject . . . they
should be construed together . . . as though they constituted one law” and
interpretively reconciled “whenever possible, in such a way so as to give
effect to all the statutes involved.” Pima County v. Maya Constr. Co., 158
Ariz. 151, 155, 761 P.2d 1055, 1059 (1988). Because the text of §§ 23-1044 and
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BELL V. ICA, ET AL.
Opinion of the Court
-1062 does not itself resolve the issues presented, we consider other factors
to guide our analysis.
¶8 Section 23-1044(A), entitled “Compensation for partial
disability; computation,” in pertinent part provides: “For temporary partial
disability there shall be paid during the period thereof sixty-six and two-
thirds per cent of the difference between the wages earned before the injury
and the wages which the injured person is able to earn thereafter.” Only
§ 23-1044, and no other statute, “provides the method of determining the
amount of compensation for partial disability.” Alsbrooks v. Indus. Comm’n,
118 Ariz. 480, 481, 578 P.2d 159, 160 (1978); see A.R.S. tit. 23, ch. 6.
¶9 Section 23-1062(B), under the heading “commencement of
compensation,” directs the commencement of payments to an injured
employee:
The first installment of compensation is to be paid no later
than the twenty-first day after written notification by the
commission to the carrier of the filing of a claim except where
the right to compensation is denied. Thereafter,
compensation shall be paid at least once each two weeks
during the period of temporary total disability and at least
monthly thereafter. Compensation shall not be paid for the
first seven days after the injury. If the incapacity extends
beyond the period of seven days, compensation shall begin
on the eighth day after the injury, but if the disability
continues for one week beyond such seven days,
compensation shall be computed from the date of the injury.
Section 23-1062(B) is the only provision in the workers’ compensation
statutes that addresses timing of payments. See A.R.S. tit. 23, ch. 6. While
it determines when compensation is payable, § 23-1044(A) determines the
amount of compensation owed for periods of TPD.
¶10 “The word ‘disability,’ as used in our Compensation Act, does
not mean disablement to perform the particular work [the employee] was
doing at the time of [the] injury, but refers to injuries which result in
impairment of earning power generally.” Savich v. Indus. Comm’n, 39 Ariz.
266, 270, 5 P.2d 779, 780 (1931); see also Time, D.C. Freight Lines v. Indus.
Comm’n, 148 Ariz. 117, 119, 713 P.2d 318, 320 (App. 1985) (“[T]he common
denominator for disability compensation during each stage is the claimant’s
reduced earning capacity and the fundamental point is that whether
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BELL V. ICA, ET AL.
Opinion of the Court
temporary or permanent, the claimant is being compensated for a loss of
earning capacity.”). “[W]hen [A.R.S. § 23-1044] says ‘disability,’ it means
earning capacity disability even though the effect upon the work[er]’s
earning capacity may be minimal,” Alsbrooks, 118 Ariz. at 484, 578 P.2d at
163, and likewise “[t]he terms ‘incapacity’ and ‘disability’ in A.R.S. § 23-
1062(B) refer to loss in earning capacity, as opposed to loss of actual
earnings,” Tartaglia v. Indus. Comm’n, 177 Ariz. 199, 201, 866 P.2d 867, 869
(1994). Thus, the compensation at issue in this case is for a claimed loss in
earning capacity resulting from a work-related injury, as distinguished
from “medical, surgical, and hospital benefits” to which an injured
employee is generally entitled under § 23-1062(A).
2.
¶11 The parties conceded two significant points during oral
argument in this Court. Bell conceded, as she did in the court of appeals,
that the seven-day waiting period prescribed in § 23-1062(B)’s third
sentence applies to claims for both TTD and TPD. See Bell, 234 Ariz. at 114–
15 ¶ 8, 317 P.3d at 655–56. And the employer and its insurance carrier
conceded, contrary to the ALJ’s and the court of appeals’ conclusions, that
§ 23-1062(B) does not require proof of an initial period of TTD before a
claimant may recover compensation for TPD. We agree with those
concessions because they comport with the statutes, legislative history, and
case law.
¶12 On the first point, § 23-1062(B) broadly refers to
“compensation,” “disability,” and “incapacity” without limiting those
terms to any particular type of disability. See also A.R.S. § 23-901(5)
(defining “Compensation,” without restriction or qualification, as “the
compensation and benefits provided” for in the workers’ compensation
statutes). Further, while Arizona’s workers’ compensation laws have
always included a waiting-period requirement since being codified nearly
ninety years ago, see Ariz. Rev. Code § 1441 (1928), our legislature, despite
amending the relevant statute several times, has never limited the waiting
period’s general language to incorporate the long-standing distinction
between TPD and TTD, see id. § 1438(B)–(C) (providing benefits for both
TPD and TTD). Thus, to hold that the waiting period does not apply
equally to compensation claims for all types of disability, including TPD
under § 23-1044(A), would require us to limit § 23-1062(B) in a way its
language has never expressed.
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Opinion of the Court
¶13 The directive in § 23-1044(A) that compensation for TPD
“shall be paid during the period thereof” does not compel us to infer such
a limitation. Because the purpose of § 23-1044(A) is to provide a method
for determining how much TPD compensation is owed rather than when it
is payable, we conclude that that statute’s isolated reference to “the period
thereof” does not relate to the commencement of TPD compensation but
instead to how compensation should be calculated throughout periods of
TPD. See Alsbrooks, 118 Ariz. at 481, 578 P.2d at 160.
¶14 Conversely, interpreting § 23-1062(B)’s waiting period to
apply to TPD compensation awardable under § 23-1044(A) is consistent
with the latter’s mandate that TPD “shall be paid during the period
thereof.” Applying § 23-1062(B) to § 23-1044(A) still enables a partially
disabled employee to receive compensation during the entire period of
TPD, including the initial waiting period, as long as the claimant meets the
requirement in § 23-1062(B)’s fourth sentence that the “disability continues
for one week beyond [the waiting period]” because then “compensation
shall be computed from the date of the injury.” Section 23-1062(B)’s waiting
period simply qualifies entitlement to TPD compensation under § 23-
1044(A) without foreclosing the availability of such compensation during
the period thereof.
¶15 We therefore hold that § 23-1062(B)’s waiting period for
compensation applies to an injured employee’s claim for any type of
disability, including TPD under § 23-1044(A).
3.
¶16 On the related second point, § 23-1062(B), read as a whole,
does not expressly condition an injured employee’s entitlement to TPD
compensation on a showing of prior TTD. Contrary to the court of appeals’
observation that the statute’s meaning is plain, Bell, 234 Ariz. at 115 ¶ 10,
317 P.3d at 656, subsection (B), and particularly its second sentence, may
reasonably be interpreted more than one way.
¶17 The second sentence of § 23-1062(B) states that “compensation
shall be paid at least once each two weeks during the period of temporary
total disability and at least monthly thereafter.” Although that sentence
specifically refers to TTD, and § 23-1062 nowhere expressly mentions TPD,
the latter part of the sentence, “and at least monthly thereafter,” logically
applies to types of disability other than TTD. We therefore disagree with
the court of appeals’ conclusion that “[b]ecause the language imposing the
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Opinion of the Court
requisite waiting period follows closely after the reference to ‘temporary
total disability,’ a plain and natural reading of this provision requires the
waiting period to be satisfied by a work week of temporary total disability.”
Id.
¶18 Legislative history supports our reasoning. As noted
previously, the waiting period provision in § 23-1062(B)’s third sentence
dates back to the 1920s. See 1925 Ariz. Sess. Laws, ch. 83, § 73 (7th Reg.
Sess.). Compare Ariz. Rev. Code § 1441 (1928) (original statutory waiting
period), with A.R.S. § 23-1062(B). The legislature added the first and second
sentences to subsection (B) in 1968, not for the purpose of limiting § 23-1062
to claims involving some period of TTD, but rather to “simplify the
procedure and thereby shorten the period of time by which an injured
claimant can claim and receive compensation for his injuries.” Hardware
Mut. Cas. Co. v. Indus. Comm’n, 17 Ariz. App. 7, 10, 494 P.2d 1353, 1356
(1972).
¶19 Moreover, interpreting § 23-1062(B) to require that a period of
TTD precede compensation for any type of disability fails to give effect to
the mandatory language in § 23-1044(A), a related statute, that
compensation for TPD “shall be paid during the period thereof.” Such an
interpretation would also run afoul of the notion that “[w]orker’s
compensation statutes are to be liberally construed so as to effectuate their
remedial purpose.” Tartaglia, 177 Ariz. at 201, 866 P.2d at 869. Indeed,
nothing in the text or history of the applicable statutes indicates that the
legislature intended to condition TPD compensation on a preceding period
of TTD, particularly when doing so might completely deprive an injured
employee with only TPD of any compensation.
¶20 Our case law is also consistent with these conclusions. In
Shaw v. Industrial Commission, we affirmed ICA awards spanning an initial
period of TPD for approximately five months, followed by about four
months of TTD, and ending with another period of TPD until the claimant’s
condition became stationary. 109 Ariz. 401, 402, 510 P.2d 47, 48 (1973).
¶21 Likewise, in Roberson v. Industrial Commission, despite the lack
of an initial period of TTD, we reasoned that if the injured employee had
known that he had a loss in earning capacity from TPD after his injury but
before being laid off shortly thereafter, then “a valid claim could have been
made.” 98 Ariz. 336, 338, 404 P.2d 419, 421 (1965) (citing English v. Indus.
Comm’n, 73 Ariz. 86, 90, 237 P.2d 815, 818 (1951) (“[T]he seven-day statute
[§ 23-1062(B)] . . . should not be interpreted to deprive an employee of
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Opinion of the Court
compensation for injures when neither the injured employee, nor his
employer . . . considers the accident as resulting in a compensable injury or
to be so trivial as not to justify reporting to the commission.”)). We further
reasoned that if the disability persisted for nearly three-and-a-half months
after he was laid off, as the employee alleged it had, then he would be
“entitled to receive compensation from the date of his injury until he returned
to some regular work,” less the amount he was paid while assigned to post-
injury trivial duties before the layoff. Id. at 338–39, 404 P.2d at 420–21
(emphasis added).
¶22 Thus, we hold that any type of disability, including TPD
under § 23-1044(A), may satisfy the waiting period without proof of prior
TTD.
B.
¶23 Finally, we address what is required to satisfy the seven-day
waiting period prescribed by § 23-1062(B). Bell argues that the waiting-
period requirement may be met by aggregating nonconsecutive time of
disability resulting from the same work-related injury. We disagree.
¶24 Our analysis of this issue turns on the third and fourth
sentences of § 23-1062(B), which state:
Compensation shall not be paid for the first seven days after
the injury. If the incapacity extends beyond the period of
seven days, compensation shall begin on the eighth day after
the injury, but if the disability continues for one week beyond
such seven days, compensation shall be computed from the
date of the injury.
Notably, this language does not include the words “consecutive,”
“uninterrupted,” “immediately following,” or the like. Nor does it include
words like “nonconsecutive,” “aggregate,” or “cumulative.”
¶25 Nevertheless, reading the two sentences together strongly
suggests that the waiting period requires seven consecutive days of
disability: “Compensation shall not be paid for the first seven days after the
injury. If the incapacity extends beyond the period of seven days . . . .” A.R.S.
§ 23-1062(B) (emphasis added). “The . . . ordinary meaning of the phrase
‘seven days’ is ‘one week,’” Tartaglia, 177 Ariz. at 201, 866 P.2d at 869, and
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Opinion of the Court
a “week” is commonly understood to mean “any seven consecutive days,”
Webster’s Ninth New Collegiate Dictionary 1337 (1983) (emphasis added).
¶26 In addition, the word “period” as used with reference to time
commonly means “a portion of time determined by some recurring
phenomenon.” Id. at 875. Here, the “recurring phenomenon” that
comprises “the period” is the existence of some type of disability for one
week—if the disability does not recur on seven consecutive days, it cannot
constitute such a period. See County of Maricopa v. Indus. Comm’n, 145 Ariz.
14, 19, 699 P.2d 389, 394 (App. 1985) (“[T]he terms ‘incapacity’ and
‘disability’ [in § 23-1062(B)] both refer to loss of earning capacity.”); see also
Van Dresser v. Firlings, 24 N.E.2d 969, 970 (Mass. 1940) (“The word ‘period’
as applied to time carries with it the idea of the separation of a designated
interval of time from the flow of time in general. The words ‘a period’ do
not readily expand to include an irregular succession of times or periods of
varying length, even though all are included within a calendar year.”).
¶27 Furthermore, § 23-1062(B)’s fourth sentence conditions
retroactive compensation for the seven-day waiting period on the disability
continuing “for one week beyond such seven days.” A.R.S. § 23-1062(B)
(emphasis added). It would be incongruous to allow seven nonconsecutive
days to satisfy the waiting period but then require seven consecutive days
(“one week”) immediately thereafter. But cf. Tartaglia, 177 Ariz. at 201, 866
P.2d at 869 (“The legislature may have used ‘one week’ [in § 23-1062(B)]
simply because using ‘seven days’ twice in the same sentence might be
confusingly redundant . . . .”).
¶28 We give the words in § 23-1062(B) their commonly
understood meaning because it is neither plain nor clear that the legislature
intended to give them a different meaning. See Kilpatrick v. Superior Court,
105 Ariz. 413, 421, 466 P.2d 18, 26 (1970); see also A.R.S. § 1-213 (“Words and
phrases shall be construed according to the common and approved use of
the language.”). In this context, we accordingly construe the statute as
imposing a waiting period that requires seven consecutive days of some
type of disability before an injured employee becomes entitled to
compensation for any type of disability, including TPD under § 23-1044(A).
¶29 Our conclusion is consistent with County of Maricopa. The
seven-day threshold was not at issue or addressed in that case, as the court
of appeals here correctly observed. Bell, 234 Ariz. at 116 ¶ 15, 317 P.3d at
657. Nonetheless, County of Maricopa is illustrative because the court there
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Opinion of the Court
affirmed an award granting benefits based on facts indicating that the
claimant satisfied the waiting period.
¶30 The employee in County of Maricopa was injured on Friday,
April 24; was absent from work on Monday, April 27; Tuesday, April 28;
Wednesday, April 29; partially absent on Thursday, April 30; and then
totally absent again on Friday, May 1 and Monday, May 4. County of
Maricopa, 145 Ariz. at 17–18, 699 P.2d at 392–93. The employee thus satisfied
the waiting period by establishing some degree of disability on at least
seven days after his injury, beginning on Saturday, April 25, and lasting
through Monday, May 4. The employee was awarded compensation for
nonconsecutive time lost between May 8 and June 7 to attend medical
appointments, id. at 18, 699 P.2d at 393, which is consistent with
§ 23-1062(B)’s provision that “[i]f the incapacity extends beyond the period
of seven days, compensation shall begin on the eighth day.” The employee
was also awarded retroactive compensation for time lost during the waiting
period, which is likewise consistent with § 23-1062(B) because his disability
“continue[d] for one week beyond [the waiting period]” as implied by the
fact that he had to continue seeking medical treatment until June 7 despite
having returned to his regular employment duties. See id.
¶31 There are two significant caveats to the waiting-period
requirement. First, “seven days” means seven consecutive calendar days,
not working days, because “although an employee may be working only one
or two days a week, his capacity to earn is reduced not only on work days,
but also on each calendar day.” Tartaglia, 177 Ariz. at 201, 866 P.2d at 869;
see also Shaw, 109 Ariz. at 402, 510 P.2d at 48 (rejecting argument that injured
employee’s disability benefits should be limited to six months because she
only worked six months per year, and holding that she “must be
compensated for both temporary total disability and temporary partial
disability for the length of time that such disabilities exist”). Although the
court of appeals correctly acknowledged this point, Bell, 234 Ariz. at 115 n.2,
317 P.3d at 656 n.2, the court incorrectly stated that “the § 23-1062(B)
waiting period must be satisfied by temporary total disability on
consecutive working days,” id. at 116 ¶ 16, 317 P.3d at 657 (emphasis added).
To be clear, we hold that the waiting period requires seven consecutive
calendar days, regardless of whether those calendar days were also
working days.
¶32 Second, an injured employee’s entitlement to compensation
depends on whether the injury resulted in a disability (that is, a loss in
earning capacity), which does not necessarily require that the employee
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missed time from work, as the ALJ in this case apparently determined. See
A.R.S. § 23-1044(A) (calculating TPD compensation by comparing “wages
earned before the injury” with “wages which the injured person is able to
earn thereafter”); County of Maricopa, 145 Ariz. at 19, 699 P.2d at 394 (“[A]n
employee who receives the same or higher wages after an injury than he
earned before the injury may nevertheless have suffered a loss of earning
capacity.”). Because none of the ALJ’s findings reveal whether Bell could
prove that her injury resulted in some type of disability, and if so, that the
disability persisted for seven consecutive days, we set aside the award
denying Bell TPD compensation. See Post v. Indus. Comm’n, 160 Ariz. 4, 7,
770 P.2d 308, 311 (1989) (“To prevent appellate courts from having to
assume a factfinder role, an [ALJ] must find on all the case’s material issues.
Although lack of findings on a particular issue does not invalidate an award
per se, we will vacate a judge’s award if we cannot determine the factual
basis of his conclusion or whether it was legally sound.” (citations
omitted)).
¶33 In sum, we hold that to receive compensation for any type of
disability, the claimant must satisfy the waiting period prescribed in § 23-
1062(B), which requires proof of seven consecutive calendar days of some
type of disability. Those days need not be work days, and the right to
compensation does not hinge on time lost from work. We do not address
whether the seven consecutive days must immediately follow the actual
injury, or whether they may occur during any subsequent, post-injury
timeframe.
III.
¶34 For the reasons stated above, we vacate the court of appeals’
opinion and set aside the ICA award. See Marriott Corp. v. Indus. Comm’n,
147 Ariz. 116, 118, 708 P.2d 1307, 1309 (1985) (“Upon review, an appellate
court may neither alter nor modify an [ICA] award but is limited either to
affirm or set aside the award.”).
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