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Bulk Transp. v. Indus. Comm’n of Ariz. - 5/7/2013

Arizona Court of Appeals Division One Holds That a Neck Scar Is Compensable Under A.R.S. § 23-1044(B)(22), Which Covers “Permanent Disfigurement About the Head or Face.”

In 2010, James Freeman suffered burns to his neck while transporting sulfuric acid for his employer.  The Industrial Commission examined him for possible facial disfigurement, but denied him compensation.  Freeman requested a hearing and an ALJ determined that the scar on his neck was between four and five inches and was visible at more than twenty feet.  Using a 1998 Claims Processing Manual, the ALJ awarded Freeman compensation for twelve months.  Freeman’s employer and its insurance carrier (“Petitioners”) requested review, which the ALJ denied, and then pursued special action relief.

The Arizona Appeals Court affirmed the award of benefits. A.R.S. § 23-1044(B)(22) authorizes awards for “permanent disfigurement about the head or face.”  Applying the plain meaning of “about,” the Court held that Freeman’s neck scar was compensable because the neck is “around,” “near,” and “in the vicinity” of a person’s head or face.  Webster’s Third New International Dictionary 5 (3d ed. 2002) (defining “about”).  The Court rejected Petitioners’ argument that “about” is merely synonymous with “on,” noting that Petitioners’ own authority defines “about” as “reasonably close to,” “almost,” “on all sides, around” and “in the vicinity.”  Merriam-Webster,

The Court also rejected Petitioners’ argument that the ALJ acted arbitrarily and capriciously by awarding compensation for twelve months based on the 1998 Claims Processing Manual, which Petitioners claimed was not used “that much anymore.”  The Court explained that A.R.S. § 23-1033(B)(22) provides an ALJ discretion in the amount of an award as long as the award does not exceed eighteen months, and the ALJ did not err in consulting the 1998 manual. 

Judge Howe authored the opinion; Judges Gould and Gemmill concurred.

Posted by: Sharad Desai

Posted On: 5/8/2013