Andrew v. Industrial Commission

• Decision Date: 22 December 1977
• Docket Number: CA-IC,No. 1,1
• Citation: Andrew v. Industrial Commission, 576 P.2d 134, 118 Ariz. 275 (Ariz. App. 1977)
• Parties: Ellen ANDREW, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Dunrite Building, Respondent Employer, Allstate Insurance Company, Respondent Carrier. 1684.
• Court: Arizona Court of Appeals

Page 134

576 P.2d 134

118 Ariz. 275

Ellen ANDREW, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Dunrite Building, Respondent Employer Allstate Insurance Company, Respondent Carrier.

No. 1 CA-IC 1684.

Court of Appeals of Arizona, Division 1, Department C.

Dec. 22, 1977.

Rehearing Denied March 1, 1978.

Review Denied March 21, 1978.

Ronald I. Rubin, Phoenix, for petitioner.

John H. Budd, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Shimmel, Hill, Bishop & Gruender, P. C. by J. Russell Skelton, Phoenix, for respondent Employer and Carrier.

OPINION

DONOFRIO, Judge.

This case, before us for the second time, presents the question of whether the hearing officer abused his discretion when he refused to waive the untimely filing of a request for hearing directed at the carrier's initial notice of claim status denying petitioner's claim for workmen's compensation benefits.

Petitioner alleges that she suffered an industrial injury on October 25, 1973. Her claim was denied by Allstate on January 22, 1974, and on March 25, 1974, petitioner requested a hearing to protest the denial of her claim. This filing occurred one day after the running of the prescribed 60-day period for protesting the carrier's action, and Allstate, therefore, moved to dismiss the request for hearing.

After a hearing limited to the jurisdictional problem created by the late filing, the hearing officer refused to waive the late filing and found that the Industrial Commission had no jurisdiction to consider petitioner's claim on its merits. That award was later set aside by this Court because the hearing officer improperly limited his inquiry to a determination of whether petitioner was in possession of facts sufficient to enable her to properly protest the notice of claim status. Because the reason for the late filing here was a miscalculation of the 60-day period by counsel for petitioner, the hearing officer refused to apply the exception to the timely filing requirement created by Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972), which he felt was limited in application to its facts.

On the basis of the later decision of Chavez v. Industrial Commission, 111 Ariz. 364, 529 P.2d 1181 (1974), and Janis v. Industrial Commission, 111 Ariz. 362, 529 P.2d 1179 (1974), this Court determined that the hearing officer had too narrowly limited the applicable rule and set aside the award so the hearing officer could decide whether the interests of justice required a waiver of the attorney's late filing.

A second hearing was, therefore, held on September 27, 1976, again limited to the issue of whether the one-day delay in filing the request for hearing would be excused. Once more, the uncontroverted evidence showed that the sole reason for the untimely filing was the miscalculation by counsel for petitioner of the 60-day period prescribed by A.R.S. § 23-947.

On October 15, 1976, the hearing officer issued an award dismissing petitioner's claim with a specific finding that, "a miscalculation in the time for filing does not constitute a meritorious excuse * * * ." After the award was affirmed on review, petitioner brought this Special Action-Industrial Commission claiming that the hearing officer abused his discretion when he refused to waive the one-day late filing.

The statute requiring requests for hearing to be filed within 60 days is A.R.S. § 23-947:

"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 sixty 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."

There is no question that since Parsons v. Bekins Freight, supra, the 60-day limit of § 23-947 is no longer jurisdictional. An untimely filing may be waived in the discretion of the hearing officer under the following conditions:

1. The claimant appears to have a meritorious position; i. e., there is some meritorious position underlying the reasons for the late filing;

2. The facts do not establish excessive delay; and

3. The delay does not prejudice the insurance carrier.

See Chavez v. Industrial Commission, supra ; Kleinsmith v. Industrial Commission, 26 Ariz.App. 77, 546 P.2d 346 (1976). However, we must disagree with the hearing officer's conclusion that the reason for the late filing does not establish a meritorious position. As stated in this Court's opinion of In Re Trull, 21 Ariz.App. 511, 520 P.2d 1188 (1974):

"It is the announced general policy of the law that cases should be tried on their merits and not disposed of on technicalities.

These broad legal concepts have particular meaning in the field of Workmen's Compensation where the statutes are remedial in nature and are to be interpreted liberally to see that justice is done. " (Citations omitted.) 21 Ariz.App. at 513-14, 520 P.2d 1190-91.

In Reddell v. Industrial Commission, 111 Ariz. 313, 528 P.2d 1254 (1974), our Supreme Court held that a one-day late filing should be excused where the secretary for claimant's attorney mailed the request for...