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Borquez v. Industrial Commission12/10/1991
applies, claimant's reliance was justifiable only if he acted with reasonable diligence.
140 Ariz. at 150, 680 P.2d at 1211 (emphasis added) (footnote omitted). In 1987, the legislature amended A.R.S. § 23-947(B)(1) and adopted the same definition of justifiable reliance, i.e., reasonable diligence. The legislature thus expressly repudiated the interpretation of justifiable reliance adopted by the supreme court in its 1984 Holler opinion. Therefore, the fact that the representation was made pursuant to the commission's statutory authority to set average monthly wages does not excuse the claimant from making reasonably diligent efforts to verify that representation. For this reason, the claimant can no longer rely on Holler as the standard for establishing justifiable reliance.
The claimant next argues that Mr. Garcia's testimony supports a finding that the commission failed to make an independent determination of the average monthly wage as required by A.R.S. § 23-1061(F). We disagree. In Harris v. Industrial Comm'n, 24 Ariz. App. 319, 538 P.2d 406 (1975), this court held that the independent determination mandated by the statute could be satisfied by the use and recomputation of the figures presented by the carrier. In this case, that is precisely what occurred. Mr. Garcia testified that he performed a number of mathematical calculations in arriving at the claimant's average
monthly wage and that his calculations were based on information provided by the employer and carrier on the notice of claim status and average monthly wage work sheet.
Finally, the claimant argues that the notice of average monthly wage was void pursuant to Roseberry v. Industrial Comm'n, 113 Ariz. 66, 546 P.2d 802 (1976). In Roseberry, the supreme court held that a notice of claim status which was unsupported by the medical report on which it was based was void on its face and not entitled to res judicata effect. As subsequent cases clearly demonstrated, the voidness doctrine of Roseberry has been narrowly construed and is only applicable where the notice of claim status is directly contrary to the medical report upon which it is based. See, e.g., Church of Jesus Christ of Latter Day Saints v. Industrial Comm'n, 150 Ariz. 495, 724 P.2d 581 (App.1986); NCR Corp. v. Industrial Comm'n, 142 Ariz. 167, 688 P.2d 1059 (App.1984); Calixto v. Industrial Comm'n, 126 Ariz. 400, 616 P.2d 75 (App.1980).
In this case, Roseberry is not applicable. First, there was no notice of claim status based on a medical report. Second, there is no indication that the Industrial Commission had any contrary wage information in its possession at the time it issued the notice of average monthly wage. Although the claimant's attorney asked Mr. Garcia what additional information he would have had available to him had he obtained the claim file prior to making his determination, the question was withdrawn and was never answered.
For all of the foregoing reasons, the award is affirmed.
Judges Footnotes
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