Blickenstaff v. Industrial Commission of Arizona

• Decision Date: 12 July 1977
• Docket Number: No. 1,CA-IC,1
• Citation: 116 Ariz. 335,569 P.2d 277
• Parties: Harold BLICKENSTAFF, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Altfillisch-Hensler, Respondent Employer, Aetna Insurance Company, Respondent Carrier. 1625.
• Court: Arizona Court of Appeals

Page 277

569 P.2d 277

116 Ariz. 335

Harold BLICKENSTAFF, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Altfillisch-Hensler, Respondent Employer Aetna Insurance Company, Respondent Carrier.

No. 1 CA-IC 1625.

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

July 12, 1977.

Rehearing Denied Aug. 31, 1977.

Review Denied Sept. 27, 1977.

Rabinovitz, Minker & Dix, P.C. by Bernard I. Rabinovitz, Tucson, for petitioner

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

Lewis & Roca by Merton E. Marks, John B. Long, Phoenix, for respondents employer and carrier.

OPINION

JACOBSON, Presiding Judge.

This special action presents two issues. First, did the petitioner sustain his burden of proving a meritorious reason for the untimely filing of a Request for Hearing. Second, does a Petition to Reopen accompanied by a physician's year-old statement of condition which is both illegible and non-specific sufficiently comply with A.R.S. § 23-1061(H).

By way of introduction, a brief review of the facts is essential. Petitioner Harold Blickenstaff sustained an abrasion and low back strain on October 4, 1973 in an industrial injury while in the employ of respondent-employer, Altfillisch-Hensler. His claim was accepted and compensation and medical benefits were paid until their termination October 21, 1973, by a Notice of Claim Status dated December 19, 1973. Subsequently, on January 30, 1974, the respondent carrier, Aetna Insurance Co., issued a Notice of Claim Status which indicated that the subject injury resulted in no permanent disability. Thereafter, on November 4, 1975, the petitioner filed a Petition to Reopen, based on a new, additional or previously undiscovered disability or condition accompanied by a physician's statement dated December, 1974 authored by Dr. F. A. Habra, orthopedic surgeon, which referenced an attached, unsigned, handwritten note dated November 6, 1974, that was ultimately revealed to be another physician's (Dr. Quiroga) statement of petitioner's condition.

On November 14, 1975 petitioner filed a Request for Hearing directed to the January 30, 1974, Notice of Claim Status. The Petition to Reopen was denied by a Notice of Claim Status issued December 10, 1975. A Request for Hearing, directed to this Notice of Claim Status was filed January 7, 1976. Pursuant to this request, a hearing was convened on July 16, 1976, to permit the petitioner to present evidence as to his meritorious reasons for filing an untimely Request for Hearing to the January 30, 1974 Notice of Claim Status; and alternatively, to determine whether there existed evidence of a new, additional previously undiscovered condition causally related to the industrial injury. Following this hearing, the hearing officer concluded that the evidence did not establish excusable delay in the untimely filing of the petitioner's Request for Hearing, and dismissed the petitioner's Request for Hearing directed toward the denial of the November 3, 1975 Petition to Reopen because this petition lacked the support of relevant and material medical reports as required by A.R.S. § 23-1061(H). It is from this Award and Decision upon Review affirming this award that the instant appeal is taken.

It is clear that A.R.S. § 23-947 provides a sixty-day limit for requesting a hearing on a Notice of Claim Status after the notice is sent. Blickenstaff's position on appeal is that the language of Janis v. Industrial Commission, 111 Ariz. 362, 529 P.2d 1179 (1974); Chavez v. Industrial Commission, 111 Ariz. 364, 529 P.2d 1181 (1974); and Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972), mandates an extension of this statutory period for an untimely filing excusable due to a meritorious position.

For a showing of a meritorious reason for the late filing which would justify a waiver of the sixty-day limit set by A.R.S. § 23-947, petitioner relies on a single premise. He claims that he never received the carrier's Notice of Claim Status due to difficulties in the mail distribution system at his residence at a trailer court. The record indicates that a community mail box existed for the entire trailer court with the contents of this box placed upon a table in the proprietor's office for individual pick-up. Petitioner testified that, on occasion, several pieces of mail addressed to him had never been personally received, although the subject Notice of Claim Status is the sole piece of correspondence which he failed to receive from the respondents. He admitted receiving compensation checks at this source.

We are mindful of the procedure detailed in A.R.S. § 23-1061(F), as amended, (Supp.1976), which states, in pertinent part, as follows:

"F. Each insurance carrier * * * shall report to the commission a notice of the first payment of compensation and shall promptly report to the commission and to the employee by mail at his last known address any denial of a claim, any change in the amount of compensation and the termination thereof, * * * ." (emphasis added)

Additionally, Rule 58(b), Rules of Procedure for Workmen's Compensation Hearings before the Industrial Commission of Arizona, provides, in part, that:

"(b) Service of any of the matters referred to in subsection (a) hereof may be made by enclosing the same, or a copy thereof, in a sealed envelope and depositing the same in the United States mail, with postage prepaid, addressed to the party served. Such service may be made to the address of such party as shown by the records of the Commission. Service shall be deemed complete when the matter to be served is so deposited."

In construing this procedure, this court in Smith v. Industrial Commission, 11 Ariz.App. 519, 466 P.2d 392 (1970) had the opportunity to examine the case of a petitioner whose mail deposit box had multiple access. The Smith court noted that:

"Service is accomplished by mailing to the proper address * * * . The person to whom the mailing is addressed need not receive the communication as a condition precedent to proper service." (citations omitted) Id. at 521, 466 P.2d at 394.

Even though Reddell v. Industrial Commission, 111 Ariz. 313, 528 P.2d 1254 (1974) does lament, by judicial notice, the "efficiency and reliability" of the United States Post Office Department, it provides no comfort to the present petitioner since we are not concerned with a delay occasioned by postal service delivery or misdelivery, but rather delay allegedly caused by non-receipt occasioned by a haphazard internal distribution system extant at petitioner's residence. In the instant case, the respondent-carrier fully discharged its obligation under A.R.S. § 23-1061(F) and Rule 58(b), Rules of Procedure Before the Industrial Commission of Arizona by posting the subject Notice of Claim Status. Likewise, the United States Postal Service apparently discharged its function by delivery of the Notice of Claim Status to the community mail box. Any deficiency which existed after this point is a function of the internal distribution system of petitioner's residence, and one which was assented to by his continued participation in this method. Moreover, under this mail delivery system which petitioner contends is the meritorious reason for an excused late filing, the record demonstrates the petitioner received at this address and via the same internal distribution system every other documentary communication pertaining to this Workmen's Compensation claim from both the carrier and the Commission, including compensation checks. As was stated in Stemkowski v. Industrial Commission, 27 Ariz.App. 457, 556 P.2d 11 (1976) (a failure to receive notice case):

"From a review of the entire record we cannot say that the hearing officer abused his discretion. The hearing officer was the judge of whether the reasons given by the petitioner established a meritorious...