Black v. Industrial Commission

716 P.2d 1018, 149 Ariz. 81, 1985 Ariz. App. LEXIS 832
CourtCourt of Appeals of Arizona
DecidedJuly 18, 1985
DocketNo. 1 CA-IC 3277
StatusPublished
Cited by2 cases

This text of 716 P.2d 1018 (Black 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
Black v. Industrial Commission, 716 P.2d 1018, 149 Ariz. 81, 1985 Ariz. App. LEXIS 832 (Ark. Ct. App. 1985).

Opinion

OPINION

EUBANK, Judge.

The issue in this special action review of an Industrial Commission award is whether the administrative law judge erred in dismissing claimant’s untimely request for hearing. For the following reasons, we affirm the award.

Claimant, Rebecca Black, retained counsel, Peter Van Baalen, to represent her in an Industrial Commission claim. On April 7, 1983, counsel notified the commission and the employer’s insurance carrier of his retention. A claim for benefits was filed on April 8, 1983.

The carrier failed to accept or deny the claim within twenty-one days of filing and counsel requested an investigation. In response to counsel’s request, the commission’s claims manager sent him a letter, [82]*82dated June 29, 1983, stating that the claim had been accepted and enclosing a notice of claim status. The notice of claim status, however, pertained to another claimant, and counsel sent a letter to the commission notifying it of the mistake.

On July 27, 1983, the carrier issued a notice of claim status denying the claimant’s claim. Both the commission and claimant received a copy of the notice. The carrier, however, did not send a copy of the notice to claimant’s counsel. On July 27, 1983, the carrier also sent a letter to the commission’s claims manager stating that the claim had been denied and assumed responsibility for the penalty benefits payable to claimant pursuant to A.R.S. § 23-1061(M). Claimant’s counsel received a copy of this letter.1 On August 10, 1983, counsel received a letter from the commission’s claims manager stating that the carrier had denied the claim. A copy of the notice of claim status was not, however, enclosed with the letter.

On November 15,1983, counsel contacted the commission and inquired about the status of claimant’s claim. On November 16, 1983, the commission sent a copy of the notice of claim status denying the claim to claimant’s counsel. Claimant filed a request for a hearing on November 18, 1983.

The claimant and her attorney testified at hearing. The sole issue litigated was whether claimant’s untimely request for hearing should be excused. The administrative law judge entered an award dismissing the hearing request. He found that the letter from the commission received by counsel on August 10, 1983, gave claimant’s counsel “constructive notice” of the notice of claim status and that counsel should have requested a hearing within ninety days of that date. He also found that claimant and her counsel knew, or with the exercise of reasonable care and diligence should have known, of the notice of claim status during the filing period. The award was affirmed on review and claimant filed this special action contesting the award.

A.R.S. § 23-947 sets forth the time period for filing a request for hearing and the limited grounds for excusing an untimely hearing request. It states:

A. A hearing on any question relating to a claim shall not be granted unless the employee has previously filed an application for compensation within the time and in the manner prescribed by § 23-1061, and such request for a hearing is filed within ninety days after the notice sent under the provisions of subsection F of § 23-1061 or within ninety days of notice of a determination by the commission, insurance carrier or self-insuring employer under § 23-1047 or § 23-1061 or within ten days of all other awards issued by the commission.
B. As used in this section, “filed” means that the request for hearing is in the possession of the commission. Failure to file with the commission within the required ninety days by a party means that the determination by the commission, insurance carrier or self-insuring employer is final and res judicata to all parties. The industrial commission or any court shall not excuse a late filing unless any of the following apply:
1. The person to whom the notice is sent does not request a hearing because of justifiable reliance on a representation by the commission, employer or carrier.
2. At the time the notice is sent the person to whom it is sent is suffering from insanity or legal incompetence or incapacity, including minority.
3. The person to whom the notice is sent shows by clear and convincing evidence that the notice was not received.
C. The late filing shall not be excused under subsection B of this section if the [83]*83person to whom the notice is sent or his legal counsel knew or, with the exercise of reasonable care and diligence, should have known of the fact of the notice at any time during the filing period. The late filing shall not be excused under subsection B of this section if it is shown by clear and convincing evidence that the notice was sent by mail or delivered personally to the last known mailing address or place of residence of the person to whom it is addressed and to his legal counsel, as shown on the records of the commission.

On appeal, claimant argues that the ninety day protest period did not commence to run until her counsel received a copy of the notice of claim status denying the claim. In support of her position, claimant relies upon A.C.R.R. R4-13-158,2 an Industrial Commission rule that requires service of all notices on a party’s authorized representative, and Sill v. Industrial Commission, 12 Ariz.App. 6, 467 P.2d 81 (1970), Fidelity & Guaranty Insurance Company v. Industrial Commission, 129 Ariz. 342, 631 P.2d 124 (App.1981), and MRF Construction Company v. Industrial Commission, 111 Ariz. 466, 532 P.2d 528 (1975).

Although respondents concede that the Industrial Commission rule required the carrier to give notice of the claim’s denial to both claimant and her attorney, they contend that the “notice” provisions of A.R.S. § 23-947 were satisfied by the carrier’s July 27, 1983 letter. Relying on Garcia v. Industrial Commission, 141 Ariz. 184, 685 P.2d 1336 (App.1984) respondents argue that the carrier was not required to serve on counsel a notice of claim status in order to give him notice under the statute.

It is our opinion that the term “notice” as used in A.R.S. § 23-947 refers to a notice of claim status. This interpretation of the statute is supported by commission rule, A.C.R.R. R4-13-106, which provides that prescribed forms are to be used by employers and carriers in administering and processing claims, and which states, “[a]ll insured employers or insurance carriers ...

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Cite This Page — Counsel Stack

Bluebook (online)
716 P.2d 1018, 149 Ariz. 81, 1985 Ariz. App. LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-industrial-commission-arizctapp-1985.