                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                         KURT STEINER, Petitioner,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

             AFFINITY TECHNOLOGY, Respondent Employer,

          COPPERPOINT INSURANCE CO., Respondent Carrier.


                             No. 1 CA-IC 14-0090
                               FILED 11-19-2015


                 Special Action - Industrial Commission
                      ICA Claim No. 20122-970236
                       Carrier Claim No. 1204683
           Suzanne Scheiner Marwil, Administrative Law Judge

                            AWARD SET ASIDE


                                   COUNSEL

Day Law Office, Mesa
By Linda C. Day and John F. Day
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Copperpoint Mutual Insurance Co., Phoenix
By Chiko F. Swiney
Counsel for Respondents Employer and Carrier



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


N O R R I S, Judge:

¶1             In this special action review of an Industrial Commission of
Arizona award and decision upon review, petitioner Kurt Steiner argues
the administrative law judge (“ALJ”) should have excused his untimely
hearing request pursuant to A.R.S § 23-947(B)(1) (2012). As relevant here,
the statute allows the Commission to excuse an untimely hearing request
by a party when the party failed to request a hearing because of “justifiable
reliance” on a representation by the Commission. Although we defer to the
ALJ’s factual findings, we agree with Steiner the record before the ALJ
established he had justifiably relied on the Commission’s representation in
failing to timely request a hearing. Young v. Indus. Comm’n, 204 Ariz. 267,
270, ¶ 14, 63 P.3d 298, 301 (App. 2003). Accordingly, we set aside the ALJ’s
award.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Steiner injured his left knee on August 17, 2012, while
employed by the respondent employer, Affinity Technology. The
respondent carrier, Copperpoint Mutual Insurance Co., accepted his
workers’ compensation claim for benefits, and on July 31, 2013, closed his
claim with a scheduled 7% permanent partial impairment of his left lower
extremity. Copperpoint issued a notice of permanent disability benefits on
August 1, 2013, (“August notice”), which, as amended on September 19,
2013, (“September notice”), paid Steiner scheduled disability benefits at
75% of his average monthly wages.

¶3            Before Copperpoint issued the September notice, Steiner had
retained Alex Carpio to represent him in the proceedings and had told
Carpio he had sustained a prior work-related injury to his right knee while
operating a forklift, which, as we discuss below, would have allowed
Steiner to present a claim for an unscheduled industrial injury. See infra ¶¶


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                   STEINER v. AFFINITY/COPPERPOINT
                          Decision of the Court

9-10. Accordingly, after Copperpoint issued its August notice, but before it
issued its September notice, Carpio wrote to the Commission and asked it
to send him “any and all prior[s] our client may have.” The Commission
responded on August 12, 2013. Reporting a 1996 “medical only” claim, the
Commission stated it had “NO PRIORS ON MICRO-FISCHE” (the “no-
records representation”).1

¶4            Based on the Commission’s no-records representation, Carpio
told Steiner that because “there’s no paperwork on it [the right knee], no
logs,” there was “nothing they could do.” He advised Steiner he would not
“be filing a Request for Hearing on the [September] Notice of Permanent
Disability.”

¶5              After Carpio told Steiner the Commission did not have any
records establishing he had sustained a prior industrial injury to his right
knee, Steiner made further inquiry. He called the Commission and spoke
to a person in “records.” He was told “there was [an] injury, the current
injury . . . and that there was another injury in 1996 . . . but it was strictly a
medical only.” He “told them there had to be another one and was told no,
there’s no other—there [were] no other claims.” Steiner also contacted a
Commission ombudsman, but obtained no other information. Steiner
could not remember the name of his treating doctor or his attorney for his
right knee injury, so he went through his personal records. He found only
a tax return from the mid to late 1980s that reflected a dip in income, which
he believed was related to the prior injury.

¶6            The time for Steiner to have filed a request for hearing from
the September notice expired by December 18, 2013 (“protest period”). See
A.R.S. § 23-947(A). Subsequently, on February 27, 2014, Steiner dismissed
Carpio as his attorney. On March 21, 2014, he met with and retained a new
attorney (“second attorney”). On that same day, he went to the
Commission in person and “requested [his] records.” He testified, “[a]ll of
a sudden I received my 1986 injury [records] from my right knee. It’s three
pages of information. And this [was] the first time that I was able to come
across this paperwork.” The “paperwork” Steiner received established he

              1A  claims adjuster for Copperpoint also contacted the
Commission and asked for “a list of all present and prior claims” for Steiner,
and specifically requested the closing medical report, 104 notice of claim
status, and 106 notice of permanent disability benefits “if the claim had been
awarded permanent benefits.” The Commission responded with the same
information it had given to Carpio.



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                 STEINER v. AFFINITY/COPPERPOINT
                        Decision of the Court

had sustained a May 15, 1986, permanent scheduled industrial right knee
injury. Steiner provided the records to his second attorney, who used them
to obtain a settlement offer from Copperpoint. Steiner dismissed his second
attorney on May 22, 2014. Steiner retained current counsel of record on May
27, 2014, and counsel filed an untimely hearing request on June 2, 2014, to
protest Copperpoint’s closure of Steiner’s left knee injury claim with a
scheduled impairment.

¶7            As we discuss in more detail below, the ALJ entered an award
for an untimely hearing request without an excuse under A.R.S. § 23-
947(B)(1), rejecting Steiner’s argument he had justifiably relied on the
Commission’s no-records representation in not requesting a hearing during
the protest period. As relevant here, this statute provides:

             B. As used in this section, “filed” means that the
             request for a hearing is in the possession of the
             commission. Failure to file with the commission
             within the required time by a party means that
             the determination by the commission, insurance
             carrier or self-insuring employer is final and res
             judicata to all parties.          The industrial
             commission or any court shall not excuse a late
             filing unless any of the following applies:

             1. The person to whom the notice is sent does
             not request a hearing because of justifiable
             reliance on a representation by the commission,
             employer or carrier.       In this paragraph,
             “justifiable reliance” means that the person to
             whom the notice is sent has made reasonably
             diligent efforts to verify the representation,
             regardless of whether the representation is
             made pursuant to statutory or other authority.

¶8          Steiner timely requested administrative review, but the ALJ
summarily affirmed the award.

                              DISCUSSION

¶9           When a compensable industrial injury results in a permanent
impairment, an award of permanent disability benefits is made depending
upon the character of the impairment as either “scheduled” or
“unscheduled.” See A.R.S. § 23-1044(B), (C) (Supp. 2015). Scheduled



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                 STEINER v. AFFINITY/COPPERPOINT
                        Decision of the Court

injuries listed in A.R.S. § 23-1044(B) are conclusively presumed to adversely
affect a claimant’s earning capacity and are compensated based on a
statutory formula. Ronquillo v. Indus. Comm’n, 107 Ariz. 542, 544, 490 P.2d
423, 425 (1971). Impairments not contained in A.R.S. § 23-1044(B) are
considered to be unscheduled and are compensated only upon the claimant
demonstrating an actual loss of earning capacity. See A.R.S. § 23-1044(C).

¶10            Arizona courts have long recognized that when a claimant
has multiple impairments, those impairments may result in a greater total
disability than the sum of the individual disabilities. See Ossic v. Verde
Central Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935); 8 Arthur Larson &
Lex K. Larson, Larson’s Workers’ Compensation Law § 90.00 at 90-1 (2015). For
that reason, when a claimant sustains a second scheduled industrial injury,
the entire injury is conclusively presumed to be unscheduled. See Ronquillo,
107 Ariz. at 544, 490 P.2d at 425. Without the benefit of the conclusive
presumption, a claimant must prove the presence of a preexisting
impairment that adversely affected his or her earning capacity at the time
he or she sustained the subsequent injury. Asbestos Eng’g and Supply v.
Indus. Comm’n, 131 Ariz. 558, 561, 642 P.2d 903, 906 (App. 1982). Here, the
claim Steiner sought to present was for an unscheduled industrial injury.
But without the means to prove the prior injury, the hearing would have
been futile. It was the Commission’s own representation that the necessary
proof was unavailable that directly caused Steiner’s delay in filing.

¶11           In rejecting Steiner’s argument he had justifiably relied on the
Commission’s no-records representation in not requesting a hearing during
the protest period, the ALJ reasoned Steiner could not have relied on “any
representations . . . regarding the existence or nonexistence of his prior
right knee industrial injury claim” because he “knew he had a right knee
injury claim and that what the Industrial Commission told Carpio was
wrong,” but nevertheless “took no action during the protest period for any
of the Notices to rectify what he knew was an error” and thus failed “to
exercise the due diligence needed to establish justifiable reliance.” While
we agree the record establishes Steiner knew he had sustained the prior
injury, the record also establishes, as Steiner argues, that he made
“reasonably diligent efforts” to verify (actually, disprove) the
Commission’s no-records representation during the protest period and
when he was unable to do so, did not request a hearing because, as Carpio
properly recognized, with “no paperwork . . . no logs,” see supra ¶ 4, Steiner
had no way to prove his prior scheduled industrial injury for purposes of
unscheduling his left knee injury.




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                 STEINER v. AFFINITY/COPPERPOINT
                        Decision of the Court

¶12           Further, given that Steiner could not remember the name of
his treating doctor or attorney for the 1986 injury, had no records in his
personal possession establishing the injury, and had been twice told by the
Commission it had no records of that injury, although Steiner knew he had
in fact sustained the injury, he had no way to prove it for purposes of
contesting Copperpoint’s August and September notices. Without any
proof or reasonable likelihood of marshalling any proof, requesting a
hearing within the protest period would not only have been futile but
frivolous.

¶13             The ALJ also reasoned Steiner failed to exercise due diligence
because he could have easily discovered the records if he had gone to the
Commission “in person” because he obtained the records from the
Commission when he did so. See supra ¶ 3. But, the ALJ’s reasoning is
grounded on speculation—that if Steiner had gone to the Commission
during the protest period the Commission would have found his records
even though during this same period it told Carpio, Copperpoint’s claims
adjuster, see supra note 1, and Steiner it had no such records.

¶14          For the foregoing reasons, pursuant to A.R.S. § 23-947(B)(1),
Steiner demonstrated he justifiably relied on the Commission’s no-records
representation in failing to timely request a hearing. Accordingly, we set
aside the award.




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