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For which of the following data types must a column be indexed if the AUTO_INCREMENT attribute is specified?
Which of the following datatypes is not a character datatype?
What is the datatype of the variable when you use the DEFINE variable command?
Which of the following is not a database object?
Identify whether the given statement is true or false.
"Database applications provide certain integrity constraints that must hold for the data."
What is the default precision for fractional seconds in a TIMESTAMP datatype column?
Which of the following declarations defines the maximum length of a CHAR datatype columns in bytes?
CHAR (20 BYTE)
Both CHAR (20) and CHAR (20 BYTE)
CHAR (20) BYTE
Which table of the INFORMATION_SCHEMA database contains information about databases?
Which of the following statements is used to delete a specific row of data?
Which of the following SQL statements can be used to repair only the index tree in a MYSQL database?
REPAIR TABLE tablename EXTENDED
REPAIR TABLE tablename QUICK
REPAIR TABLE tablename
REPAIR TABLE tablename INDEX
by Sam Savage
To: SCIENCE EDITORS
Rob Gutro of NASA Goddard Space Flight Center, -301- 286-4044, [email protected]; or Sally Koris of Northrop Grumman, -">310-812-4721, [email protected]
GREENBELT, Md., July 10 PRNewswire-USNewswire -- The full- scale model of the James Webb Space Telescope resumes its world tour with a stop in Montreal. The model will be on display July 13 - 20 in conjunction with the 37th Committee on Space Research (COSR) Scientific Assembly.
The models last public appearance was in Dublin, Ireland, where scientists, school children, media and the general public had the rare opportunity to view this tennis court-sized space observatory model up-close and learn about its mission. Over the last three years, the model has been displayed at similar events in Washington, D.C.; Rochester, N.Y.; Greenbelt, Md.; Paris, France; and Colorado Springs, Colo.
COSR, the Canadian Space Agency, and National Research Council Canada are sponsoring the models outdoor display at the Place des Vestiges in conjunction with the conference at le Palais des Congres de Montreal. The conference will be attended by thousands of space science researchers from around the world, and experts will be on hand to answer questions.
The tennis-court sized model will be on display at the Place DesVestiges, courtesy of COSR, the Canadian Space Agency; the Old Port of Montreal; the Montreal Science Center; and COM DEV International Ltd., a Canadian manufacturer and designer of space hardware subsystems. COM DEV is funded for this work by the Canadian Space Agency. The COSR conference nearby at le Palais des Congres de Montreal will be attended by thousands of space science researchers from around the world, and experts will be on hand to answer questions.
The James Webb Space Telescope is a successor to the Hubble Space Telescope and will be NASAs premier space observatory following its launch in 2013. It will orbit 940,000 miles from the Earth at the second Sun-Earth Lagrange point, capturing infrared images of every phase of our cosmic history -- from the first luminous objects to assembly of galaxies, the birth of stars, and formation of planetary systems.
The COM DEV, one of the partners on the Webb Telescope, is providing the fine guidance sensor (FGS), which measures the positions of very faint stars very accurately to achieve the high quality images required by the missions scientific objectives. The FGS cameras will measure the position of guide stars with great accuracy, pinpointing stars to one millionth of a degree. COM DEV is also providing the Tunable Filter Instrument, which will take scientific pictures at specific wavelengths in the near infrared. The tunable filer, adjoining the FGS, will have unique capabilities for detecting the first stars and will search for planets around stars outside our solar system. Canada is also providing functional support of the science operations for the Webb telescope.
Northrop Grumman is NASA Goddard Space Flight Centers prime contractor for the James Webb Space Telescope and is leading an industrial team in the design and development of this next- generation space observatory using cutting-edge technology. The mission is a joint project of NASA, the European Space Agency and the Canadian Space Agency.
For more information and images,
For more information on the James Webb Space Telescope,
2008 U.S. Provided by ProQuest Information and Learning. All rights Reserved.
Article by ArticleForge
CARPINTERIA, Calif., Jan. 9, 2012 (GLOBE NEWSWIRE) -- Astro Aerospace, a strategic business unit of Northrop Grumman Corporation (NYSE:NOC - News), has completed a major milestone in the development of the reflector boom assembly (RBA) for NASA's Soil Moisture Active Passive (SMAP) Mission.
Photos accompanying this release are available at
Astro Aerospace conducted the RBA Critical Design Review on Dec. 13-14, 2011. The RBA is being developed for the SMAP Instrument; the SMAP instrument and mission is being developed for NASA by the Jet Propulsion Laboratory, Pasadena, Calif.
The SMAP mission will provide global measurements of soil moisture and its freezethaw state. These measurements will be used to enhance understanding of processes that link the water, energy and carbon cycles, and to extend the capabilities of weather and climate prediction models. SMAP data also will be used to quantify net carbon flux in boreal landscapes and to develop improved flood prediction and drought monitoring capabilities.
The SMAP observatory will be launched into a 680-kilometer near-polar, sun-synchronous orbit, with equator crossings at 6 a.m. and 6 p.m. and will provide science data over a three-year period. Astro Aerospace received a contract for the RBA in 2009.
The SMAP instrument consists of an AstroMesh reflector and a single feed horn shared by an L-Band radar and an L-Band radiometer. The reflector spins about the zenith axis at up to 14.6 revolutions per minute (rpm), providing a conically scanning antenna beam with a surface incidence of approximately 40 degrees. Conical scanning the reflector produces a measurement swath of 1000 km that allows for global data acquisition every 2-3 days.
The spun portion of the RBA weighs nominally 108 pounds (49 kilograms) and the entire RBA, including launch restraint equipment, weighs less than 143 pounds (65 kilograms). The launch restraint equipment attaches the compact, stowed reflector to the side of the spacecraft for launch.
"We have a successful history of teaming with JPL on planetary missions, and passing this Critical Design Review indicates we are on the right path for another successful collaboration because of the expertise, performance and reliability we deliver," said Dan Hoyt, SMAP Reflector program manager for Astro Aerospace.
The AM-Lite class is the newest addition to the AstroMesh reflector family. It is optimized for smaller, 3-meter to 8-meter, deployed apertures and is inherently light, yet stiff enough to maintain its shape, spinning at 14.6 rpm. AM-Lite class qualification hardware has been tested with outstanding radio frequency performance at greater than 50 GHz. Astro Aerospace has provided seven different AstroMesh reflectors to various customers ranging in size from nine to 12.25 meters that have all deployed successfully on-orbit and are performing flawlessly.
For more than 50 years, Astro Aerospace has pioneered the technology of space deployable structures and mechanisms, including AstroMesh reflectors. All of the company's hardware has a perfect on-orbit deployment success record on hundreds of space flight missions.
Northrop Grumman is a leading global security company providing innovative systems, products and solutions in aerospace, electronics, information systems, and technical services to government and commercial customers worldwide. Please visit .northropgrummanm for more information.
Article by ArticleForge
Key Ingredients for Dry Skin:Hyalauronic Acid, Glycerin, Lanolin, Alpha Hydroxy Acids, Oil (Of Jojoba, Olive, Apricot Seed, Avocado, Grapeseed Borage, Almond, Evening Primrose), Vitamin E, Vitamin A, Vitamin C, Honey, Shea Butter, Argan, Baobab, Manuka Honey, Green Tea (Camilla Sinsnsis), Ceramide, Glycolic Acid, Hydrolized Wheat Protein, Cocoa Butter, Shea Butter, Cucumber
Why Moisturize?Everyone can benefit from using a moisturizer after cleansing. The key is finding the appropriate moisturizer based on your skin type. Moisturizers seal moisture into the skin, so the effect is hydrating while also inhibiting evaporation. Many moisturizers contain active ingredients that deliver vitamins, minerals, antioxidants and skin supporting compounds to provide therapeutic benefits that sooth, protect and ultimately help delay the onset of early aging.Eye creams are optional, but may be desirable for those with dry or aging skin as a welcome addendum to a moisturizer. Some individuals have very delicate eye areas that are more susceptible to wrinkling, dark circles and puffiness. An eye cream can help address these specific concerns with intense moisture and a high concentration of active ingredients.
How to Choose a MoisturizerThe oilier your complexion, the lighter and more liquid your moisturizer should be. Some moisturizers even have oil free ingredients that still serve to moisturize the skin without adding oil. Conversely, dry or aging skin requires a more moisturizing-nourishing preparation. Use a moisturizer labeled with your skin type or specific skin concern. If you live in a particularly harsh climate, consider wearing a more moisturizing face cream during the winter and switch to a lighter formula during warmer months.Night creams tend to be thicker and more moisturizing than day creams. It is generally recommended to have separate moisturizers simply for the fact that you will want a day cream with a Sun Protection Factor (SPF). This will provide you with added protection from sun damage that can lead to premature aging.Based on the amount of time you spend outside on any particular day, you might want to wear a moisturizer designed for outdoor use with a significantly higher SPF. You must also factor in how easily your skin burns and take precautions to protect your skin with a sufficient SPF. As a general rule, it is recommended that your day moisturizer should have at least 15-20 SPF, and if you spend more time outdoors, consider a moisturizer with 30+ SPF.
How to Use MoisturizerAfter you wash your face and apply toner or a serum (optional), scoop out enough moisturizer to comfortably cover your face and neck area. Using your fingertips, rub it in using upward strokes, making sure to moisturize the neck, décolletage and earlobes. In order to prevent streaks, allow your moisturizer to penetrate before applying foundation.
Why Cleanse?When you cleanse your face, you can help control the clarity, suppleness and condition of your skin. Cleansing rids your skin of excess facial oil, dust, bacteria, dirt and dead skin cells. This process helps keep the pores unclogged, improves circulation, and prepares your skin for the next step in your cleansing ritual. Quite possibly the most fundamental step in the beauty routine, cleansing is integral to maintaining a balanced complexion.Cleansing is recommended twice per day for most skin types, once in the morning and once in the evening. Any more than that, the natural oils become stripped, while any less and your skin can become susceptible to congestion and eruptions.
How to Choose a CleanserChoose a cleanser that is appropriate for your skin and is specifically formulated for the face. Dry skin types will need to use a creamy based cleanser, while oilier types will need a gel based or foaming type cleanser. Sensitive skin needs a fragrance-free formulation, most likely labeled as gentle and non-irritating.
How to CleanseTie your hair back with a headband or ponytail holder. Make sure to start with clean hands. Splash your face with warm or tepid water to open up your pores. Never use too hot or too cold water. Too hot and your skin can dry out, while water that is too cold will not remove the surface oils sufficiently. You can use a washcloth, sponge, exfoliation puff, facial brush or your fingers for cleansing - It all depends on your preference.Use approximately a dime to nickel sized amount of cleanser, follow product packaging instructions. You can apply the cleanser with your fingertips or washcloth. Depending on the cleanser type, you might want to work up a lather in your hands first.Use gentle upward circular strokes moving around the face, paying attention to the crevices of the nose area and hair line while extending down your neck and around the ear area. Take extra care to use a gentle touch around the eyes. Do not over-scrub or scrub too hard, as your facial skin is susceptible to become easily irritated.Once the cleansing is completed, rinse liberally with tepid water. Make sure all areas are rinsed including the neck, hairline and eye area. Cool water may be used, as it helps to close the pores. Finish by blotting your face gently with a towel using a patting technique.
Article by ArticleForge
Edward MORETTO, Plaintiff-Appellant, v. SAMARITAN HEALTH SYSTEM, an Arizona corporation; authorized and dba Havasu Samaritan Regional Hospital, Defendant-Appellee.
No. 1 CA-CV 97-0079. Decided: October 30, 1997 Law Offices of Keith S. Knochel, P.C. by Keith S. Knochel, Janelle C. Johnson, Bullhead City, for Plaintiff-Appellant. Fadell, Cheney & Burt by Brian R. Burt, Phoenix, for Defendant-Appellee.
Plaintiff-Appellant Edward Moretto (“Moretto”) appeals from summary judgment for Defendant-Appellee Samaritan Health System (“Samaritan”). Moretto had sought malpractice damages from Samaritan alleging that a physical therapist treating his compensable industrial knee injury negligently caused a secondary back injury. Two issues are presented. First, did procedural irregularities deprive Moretto of a reasonable opportunity to present facts to oppose summary judgment? Second, does Ariz.Rev.Stat. Ann. (“A.R.S.”) subsection 23-1023(B) (1995), as interpreted in Lavello v. Wilson, 150 Ariz. 235, 722 P.2d 962 (App.1985), apply to bar Moretto's civil cause of action for the negligence of a third party when Moretto did not claim or accept workers' compensation benefits for the secondary back injury?
We conclude that Moretto failed to preserve any procedural issue by not objecting below and, furthermore, that any irregularity would be harmless if Samaritan's interpretation of Lavello is correct. However, we also conclude that Samaritan's interpretation is incorrect because a claim for or acceptance of workers' compensation benefits for the secondary injury is necessary for subsection 23-1023(B) to apply. We accordingly reverse summary judgment for Samaritan and remand to the trial court.
PROCEDURAL AND FACTUAL HISTORY
On November 3, 1995, Moretto filed a complaint concerning events occurring on July 13, 1994. Moretto alleged that he was a patient at Samaritan's hospital, that a physical therapist employed by the hospital directed Moretto to sit on a stool with wheels and negligently left him unattended to put on a leg brace and shoe, and that as he leaned forward to put on the brace and shoe, the stool slid out from under him, he fell to the floor, and he herniated a disc.
Samaritan filed an answer on January 16, 1996, raising, among other defenses, “[a]ll affirmative defenses identified in Rule 12(b),” failure to join a party under Rule 19, and failure to prosecute by the real party in interest.
Discovery ensued, but Moretto's answers to interrogatories and deposition transcript are not included in the record. Moretto's Rule 26.1 disclosure statement is part of the record as an exhibit to another document. See generally Rule 26.1, Ariz. R. Civ. P. (1987 & Supp.1996) (hereinafter “Rule _”). In this statement, Moretto disclosed that he was present at Samaritan's hospital “for his daily physical therapy ․ necessitated by a previous injury.” The record also includes a letter by Samaritan's counsel confirming that he had received Moretto's workers' compensation claim file from the responsible carrier.
On August 30, 1996, Samaritan filed a Motion To Dismiss under Rules 12(b)(6) and 12(b)(7), asserting that Moretto had failed to state a claim upon which relief could be granted and that he was not the real-party-in-interest. Samaritan represented that Moretto had suffered a compensable industrial knee injury and was being treated for this injury when he allegedly suffered the secondary back injury. Samaritan also represented that it had found no evidence that the workers' compensation carrier responsible for the knee injury had reassigned the back injury claim to Moretto. Samaritan did not provide documentary support for these factual representations, but, based upon them, it argued that the complaint should be dismissed because Moretto filed it more than one year after the back injury had occurred. To support this argument, Samaritan cited subsection 23-1023(B) but did not cite Lavello.
Moretto responded by addressing the legal standards for a motion to dismiss and their applicability to a statute of limitations defense. He did not object, however, to Samaritan's factual representations that supplemented the allegations of the complaint nor did he deny the truth of these representations. Instead, he argued that Samaritan had failed to establish that Moretto had ever claimed or accepted workers' compensation benefits for the back injury. Moretto contended that without such proof, Samaritan's motion must fail: “Without a claim, there was no claim to reassign.”
In its reply, Samaritan construed Moretto's response as having denied that he claimed or received workers' compensation benefits for the primary knee injury. Samaritan then quoted from Moretto's deposition to establish that Moretto had claimed and received benefits for the primary knee injury. Samaritan also for the first time cited Lavello for the proposition that subsection 23-1023(B) applies to a claim for medical malpractice that aggravated an industrial injury.
The trial court then heard oral argument on the “Motion To Dismiss.” The court's minute entry does not mention any procedural objection by Moretto. The court ultimately ruled that Lavello is dispositive:
In Lavello, the Court ruled that an action for negligent aggravation of an industrial injury through medical malpractice constitutes a third-party action subject to the provisions of A.R.S. 23-1023(B) [sic]. If the Plaintiff did not commence the action against the Defendants within one year of its accrual, or obtain an express reassignment of the claim from his employer's insurance carrier[,] the Court is required to enter judgment dismissing the action. IT IS SO ORDERED.
The trial court entered a final judgment indicating it had granted Samaritan's motion for summary judgment. Moretto timely appealed.
On review, Moretto raises several issues. We consolidate them generally into procedural and substantive issues.
A. Procedural Irregularities
Moretto asserts that procedural irregularities deprived him of a reasonable opportunity to present facts to oppose summary judgment. We agree that the procedure in this case was irregular. We disagree, however, that Moretto preserved any procedural issue for appellate review or that the irregularity was harmful if Samaritan has correctly interpreted Lavello.
The procedural irregularities include the following. A motion to dismiss tests the formal sufficiency of a claim for relief. See, e.g., Parks v. Macro-Dynamics, ., 121 Ariz. 517, 519-20, 591 P.2d 1005, 1007-08 (App.1979); accord 5A Charles Alan Wright and Arthur R. Miller, Federal Practice And Procedure § 1356, at 294 (2d ed.1990). This motion accordingly should be granted only when a plaintiff has pled facts that reveal a legal bar to recovery. See Wright & Miller, supra § 1357, at 344-45. If a complaint is facially sufficient but unpled facts establish a legal bar to relief, then the appropriate motion is under Rule 56. See Wright and Miller, supra § 1357, at 348-49, 358; id. § 1364, at 474-75; e.g., Tregenza v. Great American Communications Co., 12 F.3d 717, 718-19 (7th Cir.1993), cert. denied, 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 465 (1994)(applying rule to statute of limitations defense); see also Rule 12(b); Rule 12; e.g., Frey v. Stoneman, 150 Ariz. 106, 108-09, 722 P.2d 274, 276-77 (1986) (stating general rule that consideration of evidence extrinsic to pleadings converts motion to dismiss to motion for summary judgment). Under Rule 56, an unsworn and unproven assertion of fact in a memorandum is insufficient to establish that undisputed facts entitle a movant to summary judgment. See Prairie State Bank v. Internal Revenue Service, 155 Ariz. 219, 221 n. 1A, 745 P.2d 966, 968 n. 1A (App.1987) (citing Rule 56(e)); see also Uniform Rules of Practice of the Superior Court of Arizona, Rule IV(f); accord Wright & Miller, supra § 1365, at 481; id. § 1366, at 499-500.
In the current case, Samaritan did not contend that Moretto's complaint was facially invalid.1 Instead, it contended that unpled facts established that Moretto did not have capacity to sue when he filed the complaint and that the statute of limitations had since run so that Moretto was barred from filing a complaint.2 Samaritan supported this contention, however, by merely asserting in its memorandum that Moretto injured his back while being treated for an industrial knee injury and had not obtained a reassignment of the back injury claim from the responsible workers' compensation carrier. This did not comply with Rule 56.3
Despite these irregularities, however, Moretto has no appellate remedy. To preserve an issue for appeal, an appellant generally must have raised it below. See, e.g., Schoenfelder v. Arizona Bank, 165 Ariz. 79, 88, 796 P.2d 881, 890 (1990). Here, Moretto had an opportunity to raise any procedural irregularity during oral argument or by motion for new trial, but he failed to do so. Therefore, he has not preserved any procedural issue for appeal.
Furthermore, Moretto does not dispute that he injured his back while being treated for a compensable industrial knee injury and that he did not obtain a reassignment of the back injury claim from the responsible workers' compensation carrier. We accordingly turn to the substantive issue.
B. Interpretation of Subsection 23-1023(B) and of Lavello
Moretto asserts that Samaritan has misinterpreted subsection 23-1023(B) and Lavello to apply to the current case because Moretto suffered a secondary back injury rather than an aggravation of his primary industrial knee injury and never claimed or accepted workers' compensation benefits for the secondary back injury. Samaritan answers by arguing that these facts are immaterial to the applicability of subsection 23-1023(B) and of Lavello.
An employee “entitled to [workers'] compensation” may pursue a civil remedy against certain third-parties whose negligence has injured the employee. A.R.S. § 23-1023(A). If an employee has not pursued a civil remedy within one year after it accrues, the claim is automatically assigned to the employercarrier liable for workers' compensation, which may pursue a civil remedy against the third-party or reassign the entire claim to the employee. A.R.S. § 23-1023(B). If an employee does pursue a civil remedy, the employee nevertheless also is entitled to workers' compensation, but the responsible employercarrier has a lien on the employee's recovery from the third-party “to the extent of [workers' compensation] paid.” A.R.S. § 23-1023(C).4
In Lavello, an employee suffered a compensable industrial knee injury in April 1978. The employee had an arthroscopy in November 1978, but the surgeon did not perform a meniscectomy. The employee last saw this surgeon in March 1979, and that same month the industrial injury claim was closed with a 5% permanent impairment.5 The employee's knee symptoms persisted, the industrial injury claim apparently was reopened, and another doctor ultimately performed a meniscectomy in May 1980. The industrial injury claim was reclosed with a 20% permanent impairment in September 1981.6 See Lavello, 150 Ariz. at 235-36, 722 P.2d at 962-63.
Meanwhile, the employee had filed a medical malpractice action against the first surgeon in March 1981, alleging that his failure to perform a meniscectomy in November 1978 had caused a significantly worsened knee condition.7 The doctor answered in part by denying that the employee had a cause of action in his own right and later moved for summary judgment under A.R.S. subsection 23-1023(B). This motion was denied, and a jury subsequently returned a verdict against the doctor. Id. at 236, 722 P.2d at 963.
On appeal, this court reversed, concluding that “an action for negligent aggravation of an industrial injury through medical malpractice constitutes a third-party action subject to A.R.S. § 23-1023(B).” Id. at 237, 722 P.2d at 964. The court explained that medical treatment for a compensable industrial injury is considered an outgrowth of the industrial injury claim and therefore that the consequences of negligent medical aggravation of an industrial injury are compensable. Id. at 238, 722 P.2d at 964 (citing Liberty Mutual Ins. Co. v. Western Casualty and Surety Co., 111 Ariz. 259, 263, 527 P.2d 1091, 1095 (1974), and Talley v. Industrial Comm'n, 137 Ariz. 343, 347, 670 P.2d 741, 745 (App.1983)). The court also stated that “the applicability of § 23-1023 depends by its terms not on the nature of the injury-producing event, but rather on the employee's entitlement to compensation,” and distinguished the consequences of a “separate, nonindustrial event,” to which subsection 23-1023(B) does not extend. Id. at 238, 722 P.2d at 965 (citing Talley, 137 Ariz. at 346-47, 670 P.2d at 745-46). Finally, the court equated subrogation rights under subsection 23-1023(B) and lien rights under subsection 23-1023(C) because both prevent double recovery and require a tortfeasor to reimburse the responsible employercarrier “for compensation actually paid.” Id. at 239, 722 P.2d at 965 (quoting Olivas v. United States, 506 F.2d 1158, 1165 (9th Cir.1974)).
Moretto is correct that Lavello and the current case do have two significant factual differences. In Lavello, the failure to perform a meniscectomy (1) directly aggravated the primary industrial knee injury, and (2) increased the compensation carrier's liability. Here, the physical therapist's alleged negligence (1) caused a distinct secondary back injury but did not aggravate the primary industrial knee injury, and (2) did not increase the responsible workers' compensation carrier's liability because Moretto never claimed or accepted workers' compensation for the secondary back injury.
The legal question is whether these two factual differences distinguish this case from Lavello in principle. We conclude that we need not address the first difference because we find the second difference dispositive.
Regarding the second difference, Moretto argues that sub-section 23-1023(B) should not as a matter of policy apply unless an injured employee has claimed or accepted compensation for the result of negligent treatment. Samaritan answers by arguing that Moretto's undisputed claim for the primary industrial knee injury is sufficient to trigger subsection 23-1023(B). For the reasons that follow, we agree with Moretto.
Statutory interpretation is a question of law to which we apply an independent judgment standard of review. See, e.g., Fremont Indem. Co. v. Industrial Comm'n, 182 Ariz. 405, , 897 P.2d 707, 710 (App.1995). Our goal is to effectuate legislative intent. We infer intent from, among other indicia, the language of the statute and its purpose. See, e.g., id.
The language of the statute supports conflicting inferences. On one hand, subsection 23-1023(A) literally makes applicability of the statute depend on entitlement to compensation. On the other hand, subsection 23-1023(C) limits the lien to the compensation paid. In the current case, even if Moretto was entitled to compensation for the back injury, the responsible carrier never paid compensation for this injury because Moretto did not claim it.8
We accordingly consider the purposes of subsection 23-1023(B) and section 23-1023 as a whole. Subsection 23-1023(B) is not a statute of limitations. See Smith v. Payne, 156 Ariz. 506, 512, 753 P.2d 1162, 1168 (1988). Its purpose is not to relieve third-party tortfeasors of liability. Id. at 509, 753 P.2d at 1165. Rather, it is part of a statutory scheme that requires tortfeasors to pay damages to those injured by their wrongs, that reimburses employerscarriers for their compensation liability, and that allows injured employees to receive the excess of the damage recovery over compensation but eliminates any double recovery. See, e.g., Martinez v. Industrial Comm'n, 168 Ariz. 307, 310, 812 P.2d 1125, 1128 (App.1991).
We conclude that extending subsection 23-1023(B) to the current case would not serve the purposes of this statute. Moretto has not claimed or accepted compensation for the back injury and therefore would not receive a double recovery from his tort claim against Samaritan. The responsible workers' compensation carrier has not paid compensation for the back injury and therefore has no right to reimbursement for any increased liability resulting from the back injury. Applying subsection 23-1023(B) to this case would merely create a trap for the unwary and unnecessarily shield an alleged tortfeasor from liability. This obviously was not the intent of the statutory scheme.
We recognize that an employercarrier whose liability is increased as a result of malpractice may recover not only the compensation paid for the secondary injury but also compensation paid for the primary injury. See Liberty Mut. Ins. Co. v. Western Cas. & Sur. Co., 111 Ariz. 259, 261-62, 527 P.2d 1091, 1093-94 (1974). But see 6 Arthur Larson, Larson's Workers' Compensation Law § 72.65(a) (1997) (criticizing rule). But if Samaritan's interpretation were correct, an employercarrier whose liability is not increased may sue a tortfeasor solely to recover compensation it paid for the primary injury. We disagree that the legislature intended this anomalous result.
Professor Larson generally supports our conclusion, indicating that subrogation does not apply when an employercarrier has not paid compensation for a secondary injury. See 6 Arthur Larson, Larson's Workers' Compensation Law § 72.65(a), at 14-290.74 n. 91.1. We also have discovered one case denying subrogation in part because the injured worker did not claim or accept compensation for a secondary injury. See Jefferson Medical College Hosp. v. Savage, 7 Pa.Cmwlth. 35, 298 A.2d 694, 697 (1972).
For these reasons, we reverse summary judgment and remand for further proceedings consistent with this opinion.
1. Samaritan tacitly conceded this point by submitting a form of judgment referring to summary judgment rather than to dismissal under Rule 12(b).
2. Rule 12(b)(6) extends to capacity and real party in interest defenses. See Wright & Miller, supra § 1357, at 354-58; id. § 1359, at 423-24. Samaritan, however, also erroneously relied on Rule 12(b)(7) (failure to join party under Rule 19), which does not extend to these defenses, see id. § 1359, at 423-24.
3. In its reply, Samaritan referred to Moretto's deposition but did not attach relevant parts of it as an exhibit. Even if this was sufficient to establish that Moretto was being treated for a compensable industrial knee injury, nothing in the record established the facts concerning reassignment. An affidavit by counsel was necessary to establish these facts. We also note that in its answering brief, Samaritan relies on Moretto's answers to interrogatories and disclosure statement. The former are not part of the record.
4. The employercarrier must also approve any settlement of the claim that is for an amount less than the compensation provided for under the Workers' Compensation Act. Id.
5. This leg impairment presumably was compensated as a scheduled disability under A.R.S. section 23-1044(B)(21).
6. This increased leg impairment also presumably was compensated as a scheduled disability under A.R.S. section 23-1044(B)(21).
7. The court did not expressly address accrual of the malpractice claim, but it did note that the action was filed about two years after the employee last saw the doctor. Id. at 236, 722 P.2d at 963.
8. Moretto arguably is now barred from claiming compensation for the back injury. See Sun Control Tile Co. v. Industrial Comm'n, 117 Ariz. 268, 270, 571 P.2d 1064, 1066 (1977) (requiring new injury claim for new secondary injury); A.R.S. § 23-1061(A) (requiring new injury claim to be filed within one year after claim accrues). Alternatively, Moretto arguably would be estopped from claiming compensation. Cf. Unruh v. Industrial Comm'n, 81 Ariz. 118, 120-21, 301 P.2d 1029, 1031 (1956) (applying quasi estoppel to widow's claim).
EHRLICH, P.J., and SULT, J., concur.
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Darryll Belanger led all bowlers in the Midtown Mixed with a super single of 378 and an awesome triple of 902.
Darryll did it on the last night of bowling in this league.
Darryll finished with his average at 241, which isn't bad for a man that only bowls once a week.
He is one of the top bowlers in the Goldbelt zone. Followed by Don Gamache (310, 812), Chase Desgroseilliers (357, 777), Chris MacInnes (270, 725), Doris Henry (264, 708), Rene Thibeault (268, 701) and Romeo Merenda (311, 691).
On the girls side, Lucie Audet led (252, 689), Sharlene McGlynn (239, 684), Louise Seguin (302, 679), Jessica Berry (305, 677) – awesome bowling, Jess – Lisa Lanzellotti (245, 668), Elaine Giroux (253, 665) and Tammy Belanger with a nice single of 257.
Irene Beaudoin had a big night in the Ladies league throwing a 303 single and huge triple of 818 – just super, Irene – Denise Didone (258, 729), Leslie Hamilton (250, 705), Louise Seguin (303, 690), it was louise's second 300 of the week.
Veronique Labonte (300, 686) and Gail Coulas (266, 598).
Joanne Sevigny picked up a single of 366 and huge triple of 978 in the Spring Mixed Mulligan league.
Excellent shooting, Jo.
Followed by Mel Paquette (331, 770), Linda Ryan (286, 715), Rosanne Lescault (263, 675), Adele Corris (323, 650) and Erika Streich (215, 612). Don Gamache (325, 812), Rick Forget (292, 800), Josh Monette (318, 736), Chase Desgroseilliers (287, 724), Gary Legros (273, 721) and Nick Geoffroy (259, 714).
The top four qualifiers in this week's Beat the Champ were first Joanne Sevigny (280, 325, 820), second Al Paquette (326, 809), third Eric Pettipas (285, 289, 795) and fourth Linda Ryan (263, 756). In match play, Ryan over Sevigny, which went down to the last ball, 247 – 246, Pettipas beat Paquette 236 – 204, Linda then beat Eric 228 – 205.
In the final, Alex Desjardins continued as Champ defeating Linda Ryan 278 to 233.
Due to the fact that Alex will be off to the YBC Nationals in Surrey, BC, he will not be able to defend his title.
That means we will take the top five qualifiers instead of four, with the No. 1 seed advancing to the finals.
Next segment is Sunday night at 7 p.m. at Midtown Bowl, there are still eight weeks left before the huge roll-off on June 16 at 11 a.m.