 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Santiago v. Industrial Commission of6/2/1998
AWARD SET ASIDE
This is a review of an Arizona Industrial Commission (Commission) award and decision upon review dismissing a rearrangement petition for lack of jurisdiction. The dispositive issue is whether the Commission's findings and order approving and adopting a settlement of a disputed claim for permanent disability compensation was an "award" that could be rearranged. We conclude that the findings and order constituted an "award" and, therefore, the Commission had jurisdiction to rearrange it. We accordingly set aside the dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
In June 1992, Jorge Santiago (Claimant) injured his back while working as a cable installer. He filed a workers' compensation claim, which respondent carrier (Sentry) accepted. Medical treatment for this injury included two back surgeries. In March 1995, Sentry determined that Claimant had a permanent disability.
The Commission proceeded to assess Claimant's earning capacity. See generally Ariz. Rev. Stat. Ann. (A.R.S.) ยง 23-1047 (1995). The Commission ultimately issued an award, finding that Claimant could work as a security guard, entitling him to a monthly disability benefit of $144.41.
Claimant timely protested the Commission's award. This protest nullified the Commission's award. See Le Duc v. Industrial Comm'n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227 (App. 1977).
Pending a hearing, Claimant and Sentry settled their dispute on or about December 12, 1995. The parties submitted their petition for approval of compromise and settlement agreement to the Commission. See Safeway Stores, Inc. v. Industrial Comm'n, 152 Ariz. 42, 46-49, 730 P.2d 219, 223-26 (1986); see also Ariz. Admin. Code R20-5-120 (Supp. 97-4); ICA Policies and Procedures for Processing Compromise and Settlement Agreements (approved April 9, 1987; revised Sept. 24, 1987), reprinted in Ray J. Davis et al., Arizona Workers' Compensation Handbook App. C-7 to -10 (1993) (Commission's Policy).
In their written agreement, the parties represented that Sentry's position was that Claimant could work at his former job as a cable installer without loss of earning capacity. It appears that, to avoid litigation, Claimant agreed that he was "thus not entitled to the payment of any compensation for permanent partial or permanent total disability . . . . " Sentry in turn agreed to pay Claimant $12,000.00, and reserved a credit of $19,481.93 against any future liability for disability compensation. Finally, Claimant "acknowledge that . . . he may or may not be able to return to employment of any type" and he "expressly acknowledge and assume the risk that his expectations concerning his future ability to work in any capacity may be incorrect." (Emphasis added). On December 20, 1995, an Administrative Law Judge (ALJ) approved and "adopted fully" the settlement in a document denominated, "FINDINGS AND ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT AND REIMBURSEMENT OF EXPENSES."
Claimant subsequently suffered a further injury and, on February 13, 1997, he filed a rearrangement petition under A.R.S. section 23-1044(F) (1995), claiming that his "earning capacity has [been] reduced since the award in this case" and that his "physical restrictions have become more limited." The Commission denied this petition, and Claimant timely requested a hearing.
Pending a hearing, Claimant submitted additional medical and labor market evidence. The medical evidence indicated that Claimant was capable of only "very sedentary-type work." The labor evidence indicated that suitable work was not reasonably available in the applicable geographic labor market.
Page 1 2 3 4 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|