Body & Paint v. SCF Arizona

• Decision Date: 01 November 2011
• Docket Number: 1 CA-IC 10-0062
• Parties: PRESCOTT VALLEY BODY & PAINT, Petitioner Employer, v. SCF ARIZONA, Petitioner Carrier, THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ALVIN P. MORRIS, Respondent Employee.
• Court: Arizona Court of Appeals

PRESCOTT VALLEY BODY & PAINT, PetitionerEmployer, v.SCF ARIZONA, PetitionerCarrier, THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ALVIN P. MORRIS, RespondentEmployee.

1 CA-IC 10-0062

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

Dated: November 1, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

SeeAriz. R. Supreme Court111(c);ARCAP 28(c);

Ariz. R. Crim. P. 31.24

DEPARTMENT E

MEMORANDUM DECISION

(Not for Publication -

Rule 28,Arizona Rules

of Civil Appellate

Procedure)

Special Action - Industrial Commission

ICA ClaimNo. 20092-010200

Carrier ClaimNo. 0911367

Administrative LawJudge Anthony F. Halas

AWARD AFFIRMED

James B. Stabler, Chief Counsel, SCF Arizona Phoenix

By Deborah E. Mittelman

Attorneys for Petitioners Employer/Carrier

Andrew Wade, Chief Counsel Phoenix

Attorney for Respondent The Industrial Commission of ArizonaAlvin P. Morris Glendale

In Propria Persona

JOHNSEN, Judge

¶1This is a special action review of an Industrial Commission of Arizona Decision Upon Review affirming an award by the Administrative Law Judge ("ALJ") that excused Alvin Morris's untimely request for hearing.For the following reasons, we affirm the award.¹

FACTS AND PROCEDURAL BACKGROUND

¶2Morris filed an initial report of injury form in which he asserted he was injured at work.On the form, he listed his address as 1032 S. Ocotillo Dr., Cottonwood, AZ 86326.On July 27, 2009, the carrier issued a Notice of Claim Status ("Notice") denying the claim.The Notice was addressed to Morrisat 1032 S. Acotillo Dr., Cottonwood, AZ 86326.It stated that if Morris did not agree with the Notice, he must submit a Request for Hearing within 90 days after the date the Notice was mailed.

¶3On December 3, 2009, 129 days after the Notice was mailed, Morris filed a Request for Hearing.The ALJ set a hearing to determine whether the request was timely and, if not, whether the untimeliness should be excused.At the hearing, Morris testified he did not receive the Notice in the mail until shortly before December 3, 2009.He said he moved from the Ocotillo address in late July 2009 and asked the Post Office to forward his mail to a Post Office box.Thereafter, he said, his mail delivery was "inconsistent."In fact, he said, during the same time period, he did not receive the usual reminder form to renew the registration on his motorcycle.On cross-examination, Morris acknowledged that he called the carrier on August 13, 2009, to inquire about his claim and learned then that his claim had been denied.

¶4The ALJ issued an award excusing the untimely filing.The ALJ accepted Morris's testimony that he did not receive the Notice until shortly before he filed the request for hearing.The ALJ also cited evidence that the Notice was addressed to an incorrect address and what the ALJ called the uncontroverted evidence that delivery of mail to Morris's Post Office box and home was inconsistent during that time.The ALJ also found that although Morris was aware in August that his claim had been denied, there was no evidence that he knew or should have knownabout the Notice itself.After the ALJ affirmed his award on review, this special action followed.

DISCUSSION

¶5This court has jurisdiction pursuant to Arizona Revised Statutes("A.R.S.")sections 12-120.21(A)(2)(2011), 23-951(A)(2011)andRule 10 of the Arizona Rules of Procedure for Special Actions.On review of a decision by the ICA, "we defer to the ALJ's factual findings but review questions of law de novo."Sun Valley Masonry, Inc. v. Indus. Comm'n of Ariz., 216 Ariz. 462, 463-64, ¶ 2, 167 P.3d 719, 720-21(App.2007).We view the evidence in the light most favorable to sustaining the award, id. at 464, ¶ 2, 167 P.3d at 721, and we will not set aside the award unless it is unsupported by any reasonable theory of the evidence, Phelps v. Indus. Comm'n of Ariz., 155 Ariz. 501, 506, 747 P.2d 1200, 1205(1987).We also defer to the ALJ's determinations regarding witnesses' credibility.Adams v. Indus. Comm'n of Ariz., 147 Ariz. 418, 421, 710 P.2d 1073, 1076(App.1985).

¶6The carrier asserts the ALJ abused his discretion in excusing Morris's late filing and contends the ALJ's findings were insufficient to support such a conclusion under A.R.S. § 23-947(2011).In relevant part, that statute provides:

B. . . .The industrial commission or any court shall not excuse a late filing unless any of the following applies:

* * *

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 person to whom the notice is sent or the person's 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.

A.R.S. § 23-947(B)(3), (C).

¶7The carrier first argues insufficient evidence supports the ALJ's conclusion that Morris did not receive the Notice until shortly before December 3, 2009.It contends that in light of Morris's "equivocal" hearing testimony, the ALJ could not reasonably conclude there was clear and convincing evidence that Morris did not receive the Notice until then.At the hearing, Morris initially stated that he did not remember whether he received the Notice.Later, Morris explained that hehad eventually received the Notice that he referenced in his Request for Hearing:

ALJ: I want to show you the Notice of Claims Status, at least the copy that I have in my file. . . .Do you recall receiving this at some point in time?

Morris: I can't remember.It could be that I got one.I just don't remember.This is all dragging out so long.I need to go over all my paperwork and dig it all out.I'm just trying to keep in line with what needs to get done here.

ALJ: The reason I ask is because on your Request for Hearing that you did file and date December 3rd, 2009 . . . [y]ou reference the Notice of Claims Status issued 7/27/09.

Morris: I got that notice.

ALJ: That's the one I just showed you.So I presume at some point you knew about it.Whether you'd seen it, I don't know.That's this July 27th notice here.So presumably by December 3rd at least, you got a copy of that notice, somewhere or other?

Morris: Yes, sir.

ALJ: Do you have any recollection of about when you might have received that?Would it have been just within days before you filed that Request for Hearing?

Morris: Probably days.

Viewed in its entirety, and accepting as we must the ALJ's determination of credibility, Morris's testimony supports the ALJ's finding that Morris did not receive the Notice until shortly before December 3, 2009.

¶8Morris also testified that his house was foreclosed upon in late July, and he had submitted a change of address with the Post Office to have his mail forwarded to a Post Office box.He testified mail delivery to the Post Office box had beenunreliable, and he continued to check the mailbox at his former residence and occasionally received pieces of mail there as well.Based on Morris's testimony and the incorrect mailing address, the ALJ reasonably could conclude that Morris did not receive the Notice until shortly before he filed his Request for Hearing, so that his late filing was excused under A.R.S. § 23-947(B)(3).SeeAssociated Grocers v. Indus. Comm'n of Ariz., 133 Ariz. 421, 423-24, 652 P.2d 160, 162-63(App.1982)(court of appeals does not apply "clear and convincing" standard in reviewing sufficiency of evidence to support ALJ's finding; court will affirm finding if it is supported by "reasonable and substantial" evidence (citation omitted)).

¶9The carrier also argues the ALJ erred by excusing Morris's untimely filing because, the carrier asserts, Morris had actual or constructive knowledge of the Notice during the filing period.Under A.R.S. § 23-947(C), a late filing is not excused "if the person to whom the notice is sent . . . 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 term "notice," as used in the statute, refers to the physical form denominated "Notice of Claim Status."Black v. Indus. Comm'n of Ariz., 149 Ariz. 81, 83, 716 P.2d 1018, 1020(App.1985).If a claimant receives actual or constructivenotice of the notice form during the 90-day filing period and fails to act upon it, an untimely request for hearing may not be excused.SeeEpstein v. Indus. Comm'n of Ariz., 154 Ariz. 189, 194, 741 P.2d 322, 327(App.1987);Black, 149 Ariz. at 84, 716 P.2d at 1021.

¶10The carrier contends that on cross-examination, Morris admitted actual knowledge of the Notice within the filing period:

Q: Now, we also discussed at your deposition the fact that you actually knew about this Notice of Claims Status that denied your claim by August of 2009 because you called [the carrier] on August 13th of 2009 and you asked why the claim was denied, correct?

A: Yes, ma'am.

The ALJ, who heard and saw this exchange in person, concluded it did not constitute an admission by Morris.To the contrary, the ALJ concluded, "While it is apparent that Morris knew of the fact of the denial by August 13, 2009, the evidence does not demonstrate one way or another whether he knew or should have known of the Notice which formally accomplished that denial."

¶11The carrier argues the ALJ "somehow overlooked" Morris's testimony about his telephone call with the carrier.The record does not support the carrier's assertion; indeed, the carrier raised the asserted "admission" in the request forreview it filed from the ALJ's award.After reviewing the carrier's request for review, the ALJ concluded his earlier decision "is fully supported by the evidence."

¶12We conclude the ALJ did not abuse his discretion by finding that the exchange recounted above did not necessarily constitute an admission by Morris that he knew of the "fact of the notice"...