Opinion
No. 1 CA-IC 13-0011
02-27-2014
JOSE L. CASTILLO, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, TIMCO WORLDWIDE, INC., Respondent Employer, HARTFORD FIRE INSURANCE CO/HARTFORD INSURANCE GROUP, Respondent Carrier
Jose L. Castillo, Phoenix Petitioner in Propria Persona Andrew Wade, Chief Counsel, Phoenix The Industrial Commission of Arizona Counsel for Respondent Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson By Eric W. Slavin Counsel for Respondent Employer and Carrier
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Special Action - Industrial Commission
ICA Claim No. 20100-290276 Carrier Claim No. YMHC29698C
The Honorable Anthony F. Halas, Administrative Law Judge
STAYED FOR FURTHER ACTION
COUNSEL
Jose L. Castillo, Phoenix
Petitioner in Propria Persona
Andrew Wade, Chief Counsel, Phoenix
The Industrial Commission of Arizona
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondent Employer and Carrier
DECISION ORDER
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined. THUMMA, Judge:
¶1 Jose Castillo challenges an award of the Industrial Commission of Arizona (ICA) terminating his medical benefits without any permanent disability effective April 25, 2012 (other than supportive medical maintenance benefits) as a result of an August 6, 2009 compensable industrial injury. For the reasons set forth below, further consideration of this matter is stayed for 90 days from the date of this order and the ICA is revested with jurisdiction to take further action it deems appropriate (including, if deemed appropriate, taking additional evidence) to address and decide the jurisdictional issue discussed below, including whether jurisdiction is proper under Arizona Revised Statutes (A.R.S.) section 23-904 (2009).
Although this provision was amended effective September 12, 2013, the applicable provision is the 2009 version, when Castillo was injured.
¶2 At all relevant times, Castillo lived in Yuma and worked for Timco Worldwide, Inc., a corporation based in California. Castillo's work involved assisting with the infrastructure required to harvest watermelons and took him throughout the southwest United States and Mexico. On August 6, 2009, while working at "D.D. Farm Colinga," Castillo suffered a compensable industrial injury. Castillo testified at a later hearing he was injured when a pallet broke and fell on him. At the same time, a "white powdery kind of acid dirt" fell into his face. Castillo felt fatigued, dizzy and had shortness of breath that night and was diagnosed with coccidioidomycosis (often called valley fever) later in 2009 or in 2010.
¶3 Castillo's claim was accepted for benefits in Arizona in a January 15, 2010 notice of claim status issued by Respondent Carrier. Castillo did not appeal this notice and was treated by several physicians over the next three years.
¶4 Castillo signed and filed with the ICA a Workers' Report of Injury dated February 25, 2010. The Report did not list the name or address of Castillo's employer; did not list California as the location of the injury; stated his first medical treatment was in Yuma; stated that witnesses lived in Yuma and stated that Castillo lived in Yuma. Although indicating that he previously suffered a work injury in California, nothing in the Report indicates that Castillo was injured in California. At an August 2012 hearing, however, Castillo testified he "was working at Double D Farms in [Coalinga], California" when he was injured on August 6, 2009.
¶5 In May 2012, the Respondent Carrier issued a notice of claim terminating Castillo's benefits effective April 2012. Castillo timely appealed that notice and evidentiary hearings were held before an Administrative Law Judge (ALJ). On December 24, 2012, the ALJ issued a decision upon hearing finding that Castillo was medically stationary without permanent disability on April 25, 2012, and awarding Castillo limited supportive medical maintenance benefits. Castillo filed a request for review and, on February 12, 2013, the ALJ issued a decision upon review affirming the decision upon hearing. Castillo filed a timely appeal to this court pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 23-951(A) (2014).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
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¶6 In his opening brief Castillo argues, apparently for the first time since being injured in August 2009, that the ICA lacked subject matter jurisdiction over his claims because his employer is a California corporation; he was hired in California; he pays taxes in California and he was injured while working in California. Respondents maintain Castillo waived these arguments, or in the alternative, that he is estopped or barred by laches from making these arguments.
¶7 As relevant to this issue, Arizona law limits this court's review "to determining whether or not the [ICA] acted without or in excess of its power." A.R.S. § 23-951(B). Although this court defers to the factual findings made by the ALJ, questions of law are reviewed de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). Moreover, as a general proposition, the question of whether a tribunal has subject matter jurisdiction is not waivable and can be raised for the first time on appeal. State ex rel. Baumert v. Mun. Court of Phx., 124 Ariz. 543, 545, 606 P.2d 33, 35 (App. 1979). Accordingly, whether the ICA had subject matter jurisdiction over Castillo's claims falls within this court's proper scope of review.
¶8 The ICA has the threshold power to determine whether it has subject matter jurisdiction, subject to this court's review. Spear v. Indus. Comm'n, 114 Ariz. 601, 604, 562 P.2d 1099, 1102 (App. 1977). Likely because benefits were accepted in Arizona in early 2010, and Castillo did not raise any subject matter jurisdiction issue until this appeal years later, that issue was not expressly discussed in the administrative record. That said, because Castillo's claims were accepted and then adjudicated, it appears that the ICA at least tacitly determined it had subject matter jurisdiction. Because Castillo's claims all arise out of his 2009 injury, if the ICA lacked jurisdiction over Castillo's initial claim, then the ICA lacked jurisdiction over all subsequent proceedings.
¶9 Respondent argues the issue of subject matter jurisdiction is res judicata because Castillo failed to object after the initial notice of claim issued through the ICA in January 2010. See A.R.S. § 23-947(A) (requiring a request for hearing be filed with the ICA within 90 days after the notice). Arizona law charges the ICA with the adjudication of claims arising out of the worker's compensation statutes. A.R.S. § 23-921. As applicable here, the relevant statute provides:
A. If a workman who has been hired or is regularly employed in this state receives a personal injury by accident arising out of and in the course of such employment, he shall be entitled to compensation according to the law of this state even though the injury was received without the state.A.R.S. § 23-904 (2009). The ICA has jurisdiction to develop and then apply this statute in the first instance where necessary to resolve a case. See Baker v. Indus. Comm'n, 92 Ariz. 198, 200, 375 P.2d 556, 557 (1962); DiMuro v. Indus. Comm'n, 142 Ariz. 57, 60-61, 688 P.2d 703, 706-07 (App. 1984); Frank E. Basil, Inc. v. Indus. Comm'n, 130 Ariz. 172, 174, 634 P.2d 984, 986 (App. 1981); Ryan v. Indus. Comm'n, 127 Ariz. 607, 609, 623 P.2d 37, 39 (App. 1981). As applied, this statute is designed "to protect residents of Arizona working elsewhere who may return after injuries" elsewhere. See Frank E. Basil, Inc., 130 Ariz. at 174, 634 P.2d at 986.
B. If a workman who has been hired without this state is injured while engaged in his employer's business, and is entitled to
compensation for the injury under the law of the state where he was hired, he may enforce against his employer his rights in this state if they are such that they can reasonably be determined and dealt with by the commission and the courts in this state.
¶10 The application of this statute is unclear in this case from a review of the administrative record provided to this court. Moreover, the application of this statute is extremely fact-intensive. Compare Cofer v. Indus. Comm'n, 24 Ariz. App. 357, 538 P.2d 1158 (1975) (holding, under A.R.S. § 23-904(B), Texas resident employed in Texas by Texas employer who was injured in Arizona and then accepted Texas worker's compensation benefits for approximately four months precluded further compensation for the same injury in Arizona) with Jordan v. Indus. Comm'n, 117 Ariz. 215, 571 P.2d 712 (App. 1977) (holding, under A.R.S. § 23-904(A), Arizona resident hired in Arizona who was injured in Texas was entitled to Arizona ICA benefits even though he had accepted "47 payments of Texas benefits"); see also Lowery v. Indus. Comm'n, 123 Ariz. 108, 111, 597 P.2d 1011, 1014 (App. 1979) ("The Jordan opinion expressed disapproval of Cofer, but distinguished it on the bases that Jordan was an Arizona resident claiming under [§] 23-904A, while Cofer was a Texas resident claiming under [§] 23-904B.") (emphasis added); City Prods. Corp. v. Indus. Comm'n, 19 Ariz. App. 286, 506 P.2d 1071 (1973) (holding record supported finding that contract of hire for claimant injured in California had been consummated in Arizona and, therefore, ICA had jurisdiction over claim; benefits received by claimant under California worker's compensation system would be credited toward award entered by ICA).
¶11 For all of these reasons, ¶12 IT IS ORDERED staying further consideration of this matter by this court for 90 days from the date of this order. ¶13 IT IS FURTHER ORDERED revesting the ICA with jurisdiction to take further action it deems appropriate (including receiving additional evidence) to address and decide the jurisdictional issue discussed above, including whether jurisdiction is proper under A.R.S. § 23-904 (2009). ¶14 IT IS FURTHER ORDERED that, should additional time be required for the ICA to take further action it deems appropriate, such a request for additional time may be made of this court. ¶15 IT IS FURTHER ORDERED that Castillo shall file with this court a status report on or before 90 days from the date of this order regarding the further action taken, and any decision rendered, by the ICA. Should Castillo fail to do so, this matter will be dismissed.