Associated Grocers v. Industrial Com'n of Arizona, 1
| Decision Date | 10 August 1982 |
| Docket Number | No. 1,CA-IC,1 |
| Citation | 652 P.2d 160,133 Ariz. 421 |
| Parties | ASSOCIATED GROCERS, Petitioner Employer and Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Gwendolyn J. Watkins, Respondent Employee. 2609. |
| Court | Arizona Court of Appeals |
In this review of an award entered by the respondent Commission in a workmen's compensation proceeding, the sole issue is whether the administrative law judge properly excused an untimely request for hearing. We affirm the award.
The petitioner employer (hereinafter employer) is self-insured, and matters relating to its workmen's compensation claims are administered by its agent, Merchants Insurance Agency, Inc. The claims administration agent and the employer are sometimes hereinafter collectively referred to as "employer." Since approximately April 1980 and continuously thereafter, the respondent employee (hereinafter claimant) has lived in a four unit apartment complex. Each unit is identified with a letter designation.
On August 27, 1980, the claimant was injured on the job. She promptly reported the injury to her employer on a form supplied by the employer. She included her apartment's letter designation as part of her mailing address. From this initial report, the employer prepared an employer's report of injury and filed it with the Commission. See generally A.R.S. §§ 23-908(F), 23-1061(E). This report also included the apartment's letter designation.
Shortly thereafter, two workman's and physician's reports of injury were prepared for and signed by the claimant and filed with the Commission. These reports did not include the apartment's letter designation.
On September 15, 1980, the employer issued a notice of claim status accepting the claim for benefits. This notice did not include the apartment's letter designation. This notice was admittedly received by claimant.
On September 30, 1980, the employer mailed a notice of claim status terminating temporary total compensation to the claimant. Although this notice also did not include the apartment's letter designation, claimant admitted receiving it.
Claimant consulted an attorney on October 2, 1980. Approximately one week later, she gave him all correspondence she had received from the employer relating to the claim. On October 28, 1980, the attorney filed a letter notifying the employer that he had been retained as counsel and also filed a hearing request protesting the September 30, 1980 notice.
On that same day, October 28, 1980, the employer mailed claimant a notice of claim status terminating temporary compensation without permanent impairment. A copy of this notice of claim status was not sent to claimant's attorney. More than 90 days later, while preparing for the hearing on the September 30, 1980 notice of claim status, claimant's attorney discovered the existence of the October 28, 1980 notice. He promptly filed a hearing request to protest it. A hearing was then scheduled to consider only the question of whether the untimely filing of the request for hearing should be excused.
At the scheduled hearing, the claimant and the employer's claims representative appeared. The claimant testified that although she could not recall whether or not she received the October 28, 1980 notice, she could recall giving her attorney every notice she had received from the claims agent. She did not give him the October 28, 1980 notice. On cross-examination, when asked about a prior admission that she had received this notice, she explained that she made this admission because she had mistakenly believed that the October 28, 1980 notice was among those she had given to her attorney.
The claims representative testified about the agent's mailing procedures. Although the agent ordinarily did not keep written documentation of mailing, the copy of the October 28, 1980 notice mailed to the Commission was received by the Commission and the copy mailed to claimant was not returned. The claims representative further testified that the agent's record of the claimant's mailing address included the apartment's letter designation, but that this designation was omitted from the October 28, 1980 notice because of clerical error.
The hearing judge thereafter issued an award excusing the untimely filing of the request for hearing. The dispositive findings supporting this award were that clear and convincing evidence established that claimant did not receive the October 28, 1980 notice of claim status and also that this notice was not mailed to claimant's last known mailing address or place of residence because the address omitted the apartment's letter designation.
On this review, the employer contends that the evidence in this case fails to satisfy the standard imposed by A.R.S. § 23-947. This statute, as amended in 1980, applies to all notices and determinations issued after July 31, 1980. See Laws 1980, Ch. 246, § 41. This case presents the first opportunity to interpret the amended section, which provides as follows:
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