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Naslund v. Industrial Commission of Arizona4/21/2005
AWARD SET ASIDE
Arizona Revised Statutes ("A.R.S.") section 23-1044(A) (Supp. 2004) was amended in 1999 to require that "fifty per cent of retirement and pension benefits received from the insured or self-insured employer during the period of temporary partial disability" be considered as "wages able to be earned," thereby reducing temporary partial disability compensation benefits owed to the workers' compensation claimant. 1999 Ariz. Sess. Laws, ch. 331, § 6. In 1925, the voters of Arizona enacted Article 18, Section 8, of the Arizona Constitution, which states in pertinent part that " he percentages and amounts of compensation provided in House Bill No. 227 enacted by the Seventh Legislature of the State of Arizona, shall never be reduced . . . except by initiated or referred measure as provided by this Constitution." Based upon this constitutional provision, we hold that the 1999 amendment to § 23-1044(A) is unconstitutional because it impermissibly reduces the amount of temporary partial disability compensation without voter approval.
Petitioner-employee Carol Naslund seeks special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review that denied her temporary partial disability ("TPD") benefits. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rule of Procedure for Special Actions 10. We set aside the award because it was based on the 1999 amendment to A.R.S. § 23-1044(A) that we find unconstitutional.
I.
While employed as a detention officer by the Maricopa County Sheriff's Office ("MCSO") in 1994, Naslund sustained a neck injury from an assault by an inmate. She filed a claim for workers' compensation benefits that MCSO and its carrier accepted. Naslund received medical and surgical treatment and returned to work as a detention officer for MCSO, but she was forced to retire in 1997 from her position because of the risk of re-injuring her neck. Upon retirement, she began receiving a monthly retirement benefit from MCSO.
In addition, she obtained a new full-time position with MCSO as an administrative assistant. She earned a lower salary in this new position but was not exposed to as much risk of re-injury.
While working for MCSO as an administrative assistant in 2000, Naslund successfully petitioned to reopen her 1994 industrial claim. She received additional medical treatment, including surgery, for her neck injury. During a period of recovery following surgery, she was eligible for TPD benefits.
Relying on the 1999 amendment to A.R.S. § 23-1044(A), MCSO and its carrier included fifty per cent of Naslund's monthly retirement income in the calculation of wages that she was able to earn during the period of temporary partial disability. As a result, Naslund's TPD compensation benefit was reduced to zero.
On appeal Naslund challenges the ICA award that upheld the application of the fifty per cent retirement income setoff. If the 1999 amendment does not apply or is unconstitutional, she is entitled to compensation benefits for the period of her temporary partial disability.
II.
Before reaching the constitutionality of the 1999 amendment to A.R.S. § 23-1044(A), we first consider Naslund's statutory arguments that the amendment should not have been applied to reduce her benefits. See Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, 11, 990 P.2d 1061, 1064 (App. 1999) ("It is sound judicial policy to avoid deciding a case on constitutional grounds if there are non-constitutional grounds dispositive of the case."). We apply a de novo standard of review to is
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