                                                                   FILED BY CLERK
                            IN THE COURT OF APPEALS                   AUG 31 2012
                                STATE OF ARIZONA
                                  DIVISION TWO                          COURT OF APPEALS
                                                                          DIVISION TWO



JOSE A. ESCOBAR,                            )       2 CA-IC 2012-0001
                                            )       DEPARTMENT B
                  Petitioner Employee,      )
                                            )       OPINION
                   v.                       )
                                            )
THE INDUSTRIAL COMMISSION OF                )
ARIZONA,                                    )
                   Respondent,              )
                                            )
MARSHALL FOUNDATION,                        )
                                            )
                 Respondent Employer,       )
                                            )
PINNACLE RISK MANAGEMENT,                   )
                                            )
                      Respondent Insurer.   )
                                            )


                SPECIAL ACTION – INDUSTRIAL COMMISSION

                             ICA Claim No. 20082-910330

                                Insurer No. 2008594676

                        LuAnn Haley, Administrative Law Judge

                                 AWARD AFFIRMED


Dee-Dee Samet, P.C.
 By Dee-Dee Samet                                                              Tucson
                                                     Attorney for Petitioner Employee

The Industrial Commission of Arizona
 By Andrew F. Wade                                                           Phoenix
                                                             Attorney for Respondent
Frank W. Frey                                                                     Tucson
                                                                 Attorney for Respondents
                                                                     Employer and Insurer


K E L L Y, Judge.


¶1            In this statutory special action, petitioner Jose Escobar argues we should

abrogate Hoosava v. Industrial Commission, 1 Ariz. App. 6, 398 P.2d 683 (1965), on

which the administrative law judge (ALJ) relied in concluding Escobar was eligible to

receive only scheduled benefits for multiple injuries to the same extremity incurred in a

single work-related accident. For the following reasons, we affirm.

                                       Background

¶2            The relevant facts are undisputed. In October 2008, Escobar was injured in

a work-related accident while employed by respondent Marshall Foundation, and his

claim for workers’ compensation benefits was accepted. Escobar underwent surgery and

the ALJ subsequently found that his condition was stationary and stable and that he had a

scheduled, five percent permanent impairment of his “right lower extremity.”1 Escobar

filed a request for review, claiming the injuries should have been treated as unscheduled

disabilities, and the ALJ affirmed its original award.       This statutory special action

followed.




       1
        Escobar injured his right leg at the knee and ankle. Although his opening brief
also states his foot was injured, the record indicates that the injury was to his ankle, not
his foot.

                                             2
                                       Discussion

¶3            Escobar argues he is entitled to an unscheduled award for his injuries

because “an impairment of the ankle and of the knee in the same accident should be

considered as an unscheduled impairment” compensable under A.R.S. § 23-1044(C)

rather than a scheduled impairment pursuant to § 23-1044(B). We review this legal issue

de novo. See Anton v. Indus. Comm’n, 141 Ariz. 566, 569, 688 P.2d 192, 195 (App.

1984).

¶4            Citing our decision in Hoosava, the ALJ concluded that multiple injuries to

one extremity arising from the same accident are properly classified as scheduled.

Accordingly, because the ALJ found “no evidence to establish that [Escobar] injured his

knee and ankle in separate incidents” she denied his request to designate the injuries as

unscheduled. In Hoosava, the petitioner lost several fingers from the same hand in an

industrial accident. 1 Ariz. App. at 6, 398 P.2d at 683. Relying on § 23-1044(B), which

lists each finger as a separate, scheduled loss, we agreed with the Industrial

Commission’s decision that the individual finger injuries amounted to three scheduled

injuries rather than an unscheduled loss. Id. at 6-7, 398 P.2d at 683-84. We concluded

that because all the injuries occurred to the same hand and there were no additional losses

to other body parts, the finger losses were compensated properly as scheduled.2 Id. at 7,


         2
       Although Hoosava specifically addressed multiple injuries to the hand, it has
been interpreted broadly to hold that injuries to multiple parts of the same extremity
received in a single industrial accident are scheduled. See Special Fund Div., Indus.
Comm’n v. Tabor, 201 Ariz. 89, ¶ 3, 32 P.3d 14, 15 (App. 2001); Arizona Workers’
Compensation Handbook § 7.5.1.2 (Ray J. Davis et al. eds., 1992 and Supp. 2011).

                                            3
398 P.2d at 684. Escobar acknowledges that Hoosava requires multiple injuries to the

same extremity incurred in a single accident to be designated scheduled losses. But, he

asserts we should reconsider Hoosava for public policy reasons and in light of our

supreme court’s decision in Rodgers v. Industrial Commission, 109 Ariz. 216, 508 P.2d

46 (1973).

¶5            In Rodgers, the petitioner suffered an industrial injury to his right hand and

was awarded scheduled benefits. 109 Ariz. at 217, 508 P.2d at 47. In a subsequent

industrial accident, the petitioner suffered another injury to his right hand and received an

additional scheduled award.      Id.   On review, our supreme court held that when

successive, scheduled injuries are received in separate accidents, they should be

compensated as unscheduled. Id. at 217-18, 508 P.2d at 47-48.

¶6            Escobar concedes his injuries cannot be considered unscheduled under

Rodgers because they resulted from a single accident. But, he asserts that it “is hard to

understand why . . . [he] should be treated so differently under the worker’s

compensation law” simply because his injuries did not result from separate accidents. He

reasons that based on our supreme court’s extension of unscheduled benefits in Rodgers

as well as “the spirit and intent of the worker’s compensation law” we should abrogate

Hoosava and permit his injuries to be compensated as unscheduled. Our jurisprudence,

however, does not permit such an outcome.

¶7            In Rodgers, the supreme court based its decision on § 23-1044(E), which

provides:



                                             4
              In case there is a previous disability, as the loss of one eye,
              one hand, one foot or otherwise, the percentage of disability
              for a subsequent injury shall be determined by computing the
              percentage of the entire disability and deducting therefrom
              the percentage of the previous disability as it existed at the
              time of the subsequent injury.

The supreme court reasoned that “[w]hen the entire effect of the successive injuries

results in disabilities which do not come within one of the scheduled classifications, there

is no way that the resulting disability can be classified as scheduled and still give

meaning and effect to [§ 23-1044(E)].” Id. In later cases, the court reiterated that

subsection (E) is the basis for an unscheduled award in the event of successive injuries.

See Alsbrooks v. Indus. Comm’n, 118 Ariz. 480, 483, 578 P.2d 159, 162 (1978)

(subsection (E) requires successive, scheduled injury to be treated as unscheduled); All

Star Coach, Inc. v. Indus. Comm’n, 115 Ariz. 335, 336, 565 P.2d 515, 516 (1977)

(“When a worker suffers successive injuries, A.R.S. § 23-1044(E) is triggered.”).3 But

§ 23-1044 does not extend unscheduled benefits to employees who sustain multiple

injuries to the same extremity in a single accident. Thus, even were we to agree with

Escobar that policy considerations support extending unscheduled benefits in his



       3
        In support of his argument that injuries to the same extremity resulting from the
same accident should be unscheduled, Escobar cites Ossic v. Verde Central Mines in
which our supreme court stated, “If the complete effect is the test when the injuries are
received separately, we see no reason why it should not be the same when they are
received simultaneously.” 46 Ariz. 176, 189, 49 P.2d 396, 402 (1935). But Ossic’s
injuries, although all caused by a single blow to his head, seriously impaired several
bodily functions. Id. at 180, 49 P.2d at 398. And, when multiple scheduled injuries
affect distinct bodily functions to such an extent that they are likely to affect the worker’s
ability to obtain employment, the commission may consider this in determining
appropriate compensation. See id. at 191, 49 P.2d at 402. That is not the case here.
                                              5
circumstance, that decision must be made by our legislature. See Alsbrooks, 118 Ariz. at

483, 578 P.2d at 162.

¶8            Moreover, despite Escobar’s assertion that “[i]t is hard to understand why

. . . [he] should be treated so differently,” the statutory scheme suggests important policy

considerations were involved in our legislature’s decision to extend unscheduled benefits

to successive, scheduled injuries.     Although the primary purpose of the Workers’

Compensation Act is to protect the injured employee, it also exists to protect the

employer and the state compensation fund. See Stephens v. Textron, Inc., 127 Ariz. 227,

230, 619 P.2d 736, 739 (1980); Nation v. Weiner, 145 Ariz. 414, 420, 701 P.2d 1222,

1228 (App. 1985).       To protect employers, the legislature created a special fund to

compensate the employer of an employee with a preexisting scheduled injury who suffers

a second scheduled injury as defined by § 23-1044(B). See A.R.S. § 23-1065(B), (D).

The purpose of this fund “is to encourage employers to hire handicapped workers by

protecting such employers from the burden of increased compensation liability resulting

from the combination of preexisting impairments and industrial injuries.” Salt River

Project v. Indus. Comm’n, 172 Ariz. 477, 482, 837 P.2d 1212, 1217 (App. 1992). As the

Marshall Foundation points out, this consideration is absent when, as here, the employee

has no preexisting injury that would increase the employer’s risk of greater compensation

liability.

                                       Disposition

¶9            Because Escobar’s arguments do not justify abrogating Hoosava for public

policy reasons or extending Rodgers to non-successive injuries to the same extremity, we

                                             6
affirm the ALJ’s award concluding Escobar’s injuries were scheduled. The Marshall

Foundation requests its attorney fees and costs on appeal pursuant to A.R.S. §§ 12-349,

12-350 and Rule 21, Ariz. R. Civ. App. P. Because we cannot say Escobar’s appeal was

brought without substantial justification, see § 12-349, we deny the request. As the

successful party, the Marshall Foundation is entitled to its costs of appeal, contingent

upon its compliance with Rule 21, Ariz. R. Civ. App. P., and Rule 4(g), Ariz. R. P. Spec.

Actions. The ALJ’s award is affirmed.




                                            /s/ Virginia C. Kelly
                                            VIRGINIA C. KELLY, Judge


CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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