Purper v. Cai clancy/copperpoint

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNNY E. PURPER, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CAI – CLANCY & CLANCY, Respondent Employer,

COPPERPOINT MUTUAL INSURANCE COMPANY,
Respondent Carrier.

No. 1 CA-IC 18-0009
FILED 2-21-2019

Special Action - Industrial Commission
ICA Claim No. 20081-020320
Carrier Claim No. 0805638
The Honorable Gaetano J. Testini, Administrative Law Judge (Retired)

AWARD SET ASIDE

APPEARANCES

Johnny E. Purper, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Stacey Ann Rogan
Counsel for Respondent, ICA
Copperpoint Mutual Insurance Company, Phoenix
By Sharon M. Hensley
Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.

C A M P B E L L, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review. Purper contends the
insurance carrier underpaid his temporary disability benefits and
challenges his permanent award including supportive medical
maintenance benefits. Because insufficient evidence supports the
administrative law judge’s (“ALJ’s”) findings and decision, we must set
aside the award.

BACKGROUND

¶2 Purper fell from a ladder in March 2008 while performing
maintenance on palm trees in the course of his employment. The fall caused
a substantial injury to his left heel and a cut on his hand. Soon after the
accident, Purper’s workers’ compensation claim for his injury was accepted
by his employer’s insurance carrier. His hand healed without incident, but
the left heel required more care. Between 2008 and 2015, Purper underwent
at least six surgeries. He also received pain management treatment. His
claim was closed with awards for permanent disability and reopened at
least twice between 2008 and 2016.

¶3 On March 15, 2017, the carrier again issued a notice of claim
status closing Purper’s claim, effective February 14, 2017, with an
impairment and permanent award. The carrier also issued a notice of
supportive medical maintenance benefits, authorizing two office visits a
year for three years, possible injections, an MRI or CT scan, and three office
visits over the course of two years for pain management. Later, the carrier
issued a notice of permanent disability benefits for a scheduled impairment
of 48 percent of the left lower extremity, paid at 75 percent of the applicant’s
average monthly wage of $3,000. Purper requested a hearing and
investigation under A.R.S. section 23-1061(J), claiming that the carrier had

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Decision of the Court

underpaid his temporary benefits beginning in 2012, and challenging the
termination of his claim and subsequent award amount for permanent
disability including supportive medical maintenance benefits.

¶4 Purper identified four time periods during which he believed
underpayment of temporary benefits from the carrier occurred: (1) March
20, 2012 to May 17, 2012; (2) October 16, 2012 to February 20, 2014; (3)
October 10, 2016 to February 14, 2017; and (4) February 15, 2017 to July 18,
2017. Purper testified that the carrier had underpaid his benefits during all
four time periods. The ALJ treated the fourth time period as an appeal of
the termination of Purper’s claim, explaining that because it closed on
February 14, 2017, he would not be eligible for temporary benefits unless
the ALJ found he needed more active treatment.

¶5 To rebut Purper’s claims, a carrier insurance adjuster
reviewed Purper’s complaint and the disability benefits paid, testifying that
Purper received all temporary benefits owed during the third time period
and that his case was closed for a time in 2012, though her testimony was
vague as to specific dates within 2012. Neither the judge nor counsel asked
her to confirm whether she believed Purper had been appropriately paid
for the first time period that Purper identified.

¶6 Purper also challenged the termination of his claim and
permanent disability award, arguing the scheduled impairment award and
the supportive medical care award were insufficient for his needs. The ALJ
heard testimony from Purper’s doctor, who testified that after the date
Purper’s claim was terminated, he still needed injections for pain
management and bracing for his foot; doctor’s visits two to three times a
year over the next three years; MRIs or CT scans; and pain management
visits. He gave Purper’s foot an impairment rating of 46 percent but agreed
with other doctors’ assessments that 48 percent was also an appropriate
rating.

¶7 The ALJ found that Purper did not establish by a
preponderance of the evidence that he was owed temporary partial
disability benefits, citing only to the insurance adjuster’s testimony. The
ALJ also ordered a scheduled permanent partial disability award of 48
percent of the left lower extremity and further awarded additional
supportive medical maintenance benefits suggested by Purper’s doctor.
Purper appealed to the ICA, who affirmed the ALJ’s decision in full.

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Decision of the Court

DISCUSSION

¶8 On appeal, Purper renews his argument that he has been
underpaid benefits and challenges the scheduled award for permanent
disability including supportive medical maintenance benefits. Our review
of a workers’ compensation case is limited to whether the record supports
the ALJ’s findings. Pac. Fruit Exp. v. Indus. Comm’n, 153 Ariz. 210, 214 (1987).
We will affirm the award so long as it is supported by reasonable evidence,
viewing the record in the light most favorable to the ALJ decision. Delgado
v. Indus. Comm’n, 183 Ariz. 129, 131 (App. 1994). When no evidence of
record supports the decision, the award will be set aside. Van Dyke v.
Standard Acc. Ins. Co., 92 Ariz. 173, 174 (1962); Special Fund Div./No Ins.
Section v. Indus. Comm’n, 172 Ariz. 319, 324 (App. 1992).

¶9 Here, the evidence is insufficient to affirm the ALJ’s decision
regarding underpayment of Purper’s temporary benefits. The ALJ based
the factual findings solely on the claim adjustor’s testimony. She only
testified that Purper had been paid in full from October 10, 2016 to February
14, 2017 (the third time period Purper identified) and that his case was
closed at some point in 2012. While the carrier’s attorney commented
during the hearing that Purper’s claim was closed during the second time
period, October 16, 2012 to February 20, 2014, no testimony confirms that
assertion. Moreover, neither the ALJ decision nor our search of the record
yields any evidence to rebut Purper’s assertion that he was underpaid
benefits during the first time period, March 20, 2012 to May 17, 2012.
Accordingly, insufficient evidence supports the finding that Purper was
provided with all benefits due.

¶10 We need not address whether reasonable evidence supported
the ALJ decision on the remainder of Purper’s appeal, because to do so
would be futile. When reviewing a workers’ compensation award, A.R.S.
section 23-951(D) “limit[s] this court’s power to modify, affirm in part, or
remand with directions.” Arrowhead Press, Inc. v. Indus. Comm’n, 134 Ariz.
21, 24 (App. 1982). Thus, we may either affirm the award in its entirety or
set the award aside. Id.; A.R.S. § 23-951(D) (“The court of appeals shall enter
judgment either affirming or setting aside the award, order or decision.”).
Because we have determined that insufficient evidence supports the ALJ’s
decision on the issue of temporary benefits, we must set aside the entire
award, regardless of whether sufficient evidence exists to resolve the
remaining issues. See Arrowhead Press, Inc., 134 Ariz. at 24-25.

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CONCLUSION

¶11 For the foregoing reasons, we set aside the ALJ’s award.

AMY M. WOOD • Clerk of the Court
FILED: AA

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