Allen v. Industrial Commission

787 P.2d 1107, 163 Ariz. 311, 55 Ariz. Adv. Rep. 23, 1990 Ariz. App. LEXIS 52
CourtCourt of Appeals of Arizona
DecidedFebruary 27, 1990
DocketNo. 1 CA-IC 89-053
StatusPublished

This text of 787 P.2d 1107 (Allen v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Industrial Commission, 787 P.2d 1107, 163 Ariz. 311, 55 Ariz. Adv. Rep. 23, 1990 Ariz. App. LEXIS 52 (Ark. Ct. App. 1990).

Opinion

OPINION

KLEINSCHMIDT, Judge.

This is a special action review of an Industrial Commission award dismissing the petitioner employee’s (claimant’s) hearing request. Two issues are presented:

(1) whether the administrative law judge erred by finding that the March 14, 1986, worker’s report of injury signed and filed by the claimant’s wife did not constitute a claim for workers’ compensation benefits, and
(2) whether the administrative law judge erred by finding that the claimant’s subsequent claims for benefits were untimely without excuse.

Because we find that the claimant’s attorney’s letter of June 4, 1987, was a legally cognizable claim for workers’ compensation benefits, we set aside the award.

On January 18, 1986, the claimant sustained a back injury while employed by the uninsured respondent employer, Chemical Fireproofing (Chemical). On March 14, 1986, the claimant’s wife signed and filed a worker’s report of injury with supporting medical records, which was not processed by the Industrial Commission.

On May 5, 1986, the claimant and his wife entered into a written agreement with Chemical, which provided that Chemical would pay 20% of the claimant’s hospital bills not covered by his personal insurance, although Chemical also paid many of claimant’s medical bills, and would pay for the installation of a spa in exchange for the claimant agreeing not to institute any action arising out of his industrial injury. The phrase “with guarantee of job” was added to the agreement to reflect the continuing availability of the claimant’s job when he was able to return to work. In addition to the benefits provided in this agreement, the employer paid the claimant’s full salary from January 19, 1986, through September 5, 1986. During this time, the claimant was off work until early June 1986, and only worked part-time during the remaining three months. After August 20,1986, the employer paid no additional medical bills.

In May 1987, the claimant sought legal advice. On June 4, 1987, the claimant’s attorney sent a letter to the Industrial Commission which provided information regarding the claimant’s injury, his uninsured employer, the agreement he had entered into with the employer, and his unequivocal desire to file a workers’ compensation claim for benefits. This letter also included an unsigned worker’s report of injury completed by the attorney. The claimant’s attorney contacted the Industrial Commission to follow up on this letter on July 7, 1987; August 25, 1987; September 22, 1987; October 28, 1987; and December 24, 1987. He was repeatedly told that the claim was being processed and a determination would be forthcoming.

Eight months later, on February 10, 1988, the Special Fund wrote to the claimant’s attorney and enclosed a worker’s report of injury for his client to complete and return. This report was completed and signed by the claimant and filed on February 12, 1988. On March 18, 1988, the Special Fund issued a notice of claim status denying the claimant’s claim as untimely. The claimant timely requested a hearing and one hearing was held.

The claimant testified that at the time of his injury he was cleaning an overhead kitchen duct, slipped and fell, and struck his back. The claimant was taken to the emergency room and was hospitalized. While he was in the hospital, Chemical’s [313]*313owners, the Olsens, came to see him. They told him not to worry about anything and that “it was all taken care of.” The claimant stated that he had been employed by Chemical for over three years, and he was paid his full salary while he was unable to work. He testified that shortly after the injury he looked into filing a third-party claim against Intel, where he had been working at the time of his injury. The claimant stated that Mr. and Mrs. Olsen threatened to file bankruptcy and he feared he would get nothing from the Olsens if he filed a claim against Intel.

In April 1986, the Olsens presented the claimant with a written agreement to sign, in which the claimant agreed not to file any claims arising out of his industrial injury. Several weeks later, the claimant and his wife signed this agreement in front of a notary. The claimant testified that he always intended to recover whatever benefits he was entitled to under the law, and he assumed that the agreement would insure this. The claimant also testified that not all of the terms of his agreement with the Olsens were contained .in the written document. One omitted term, a guaranteed job, was inserted in front of the notary with Mr. Olsen’s approval.

The claimant testified that he was not aware that his wife had filed a workers’ compensation claim in March 1986, but when he became aware of her filing, he approved of it. He stated that he completed and signed a worker’s report of injury for his attorney on July 1, 1987, which was not filed until February 12, 1988. The claimant sought legal representation because he felt that the Olsens were not living up to the written agreement. The claimant’s wife also testified and corroborated her husband’s testimony.

Otto William Olsen, Jr. testified that Chemical performed industrial cleaning of kitchen exhaust systems and was the claimant’s employer. At the time of the claimant’s injury, he did not have workers’ compensation insurance. Mr. Olsen agreed that he had visited the claimant in the hospital and had told him that everything was going to be all right, but he denied ever telling the claimant that he had no right to file a workers’ compensation claim.

With regard to the May 1986 written agreement, Mr. Olsen testified that it was prepared by an attorney based on agreements that the Olsens had entered into with the claimant. Mr. Olsen stated that he made no additional promises outside of this written agreement, nor was he aware of any promises made by his wife or daughter. He testified that he voluntarily paid the claimant’s salary as a matter of goodwill. He noted that the claimant returned to work for a couple of months after the agreement was signed, but was only able to work part-time and subsequently quit because he could not physically perform the work.

Shelly Lynn Palmer, Mr. Olsen’s daughter, testified regarding bookkeeping she performed for Chemical. She only did minor book work for her parents’ business and was not a salaried employee. She stated that she had paid all of the claimant’s medical bills per the May 1986 written agreement. The last bill she paid was on August 20, 1986.

On December 28, 1988, the administrative law judge entered an award dismissing the claimant’s application for benefits as untimely. The award was affirmed on administrative review, and the claimant brought this special action.

Because we find it more persuasive, we address the claimant’s second argument first. The claimant argues that the time for filing his workers’ compensation claim was tolled during the time that the parties were acting in conformity with the written settlement agreement and Chemical was paying the claimant’s salary and medical expenses. The argument continues that once the claimant became aware that Chemical was no longer abiding by the agreement, he acted with due diligence in seeking legal advice and having his attorney send a notice of claim letter to the Industrial Commission which manifested the clear intent to claim workers’ compensation benefits.

Arizona Revised Statutes section 23-1061(B) provides:

[314]

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Related

Cajun Cable Co. v. Industrial Commission
754 P.2d 317 (Court of Appeals of Arizona, 1987)
Fullen v. Industrial Commission
595 P.2d 657 (Arizona Supreme Court, 1979)
McKaskle v. Industrial Com'n of Arizona
659 P.2d 1313 (Court of Appeals of Arizona, 1982)
McNatt v. Industrial Commission
474 P.2d 1010 (Court of Appeals of Arizona, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
787 P.2d 1107, 163 Ariz. 311, 55 Ariz. Adv. Rep. 23, 1990 Ariz. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-industrial-commission-arizctapp-1990.