Cohen v. Industrial Com'n of Arizona, 1

• Decision Date: 29 April 1982
• Docket Number: CA-IC,No. 1,1
• Citation: Cohen v. Industrial Com'n of Arizona, 648 P.2d 139, 133 Ariz. 24 (Ariz. App. 1982)
• Parties: Jack COHEN, aka Jack Collins (Deceased), Barbara Cohen (Widow), Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Transcontinental Mortgage Corp., Respondent Employer, The Ohio Casualty Insurance Company, Respondent Carrier. 2463.
• Court: Arizona Court of Appeals

Page 139

648 P.2d 139

133 Ariz. 24

Jack COHEN, aka Jack Collins (Deceased), Barbara Cohen (Widow), Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Transcontinental Mortgage Corp., Respondent Employer The Ohio Casualty Insurance Company, Respondent Carrier.

No. 1 CA-IC 2463.

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

April 29, 1982.

Rehearing Denied June 15, 1982.

Review Denied July 7, 1982.

Spencer K. Johnston, Phoenix, for petitioner employee.

James A. Overholt, Acting Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Jennings, Kepner & Haug by Craig R. Kepner, Diane D. Hienton, Phoenix, for respondent carrier.

OPINION

CONTRERAS, Judge.

At issue in this special action review of an Industrial Commission award is whether the administrative law judge abused his discretion in dismissing petitioner's claim as untimely filed without a meritorious excuse. We conclude that he did, and therefore set aside the award.

BACKGROUND

The essential dates and events are these:

March 28, 1978 Jack Cohen (Collins) was killed in Florida, allegedly within the course of his employment.

August 3, 1978 Eugene Keller, counsel for the estate of Jack Cohen, having been contacted by the stepson of Barbara Cohen, the widow (hereafter petitioner), wrote to the insurance agency which had sold respondent carrier's policy to respondent employer. Keller advised the agency of Cohen's death and inquired about procedures for making a claim on behalf of the estate and/or the widow.

August 8, 1978 The insurance agency sent Keller an Employer's Report of Industrial Injury, but not a Widow's Claim. The accompanying letter stated:

Enclosed please find Workmen's Compensation forms to be filled out for the claim on Jack Cohen....

October 13, 1978 The Employer's Report, filled in by petitioner, was sent to the insurance agency, and subsequently forwarded to the carrier.

October 17, 1978 The carrier filed the Employer's Report with the Industrial Commission.

May 11, 1979 Counsel for the estate called the Industrial Commission, inquired about the status of the claim, and was informed that a Widow's Claim should be filed.

August 1, 1979 Petitioner filed Widow's Claim with the Industrial Commission, one year and four months after Jack Cohen's death.

Subsequently, the carrier denied the claim. Pursuant to petitioner's request a hearing was held limited to the question arising from the late filing of petitioner's claim. The administrative law judge issued a decision dismissing the claim. That decision included the following dispositive finding:

15. The evidence does not establish that the approximate, four-month delay in the filing of the claim was excessive under the circumstances or that the carrier was prejudiced. However, the evidence also does not establish that the applicant has a meritorious reason for the late filing of the claim. Therefore, the late filing is not excused.

The decision was affirmed on administrative review and this special action review followed.

Since the late filing occurred prior to the effective date of the current A.R.S. § 23-1061(A), relief from the late filing is governed by the three-part test developed in Kleinsmith v. Industrial Commission, 26 Ariz.App. 77, 546 P.2d 346 (1976), approved and adopted, 113 Ariz. 189, 549 P.2d 161 (1976), and Andrew v. Industrial Commission, 118 Ariz. 275, 576 P.2d 134 (App.1977). The administrative law judge found that the delay was not excessive and the carrier was not prejudiced. Accordingly, the only issue on appeal is whether petitioner presented a meritorious reason underlying the late filing so as to excuse it. We conclude that she did present facts which constituted a meritorious excuse.

First, petitioner originally filed the wrong form with the Industrial Commission. That form had been provided by the insurance agency. Respondent asserts that since no misrepresentation was made by either the carrier or the employer, St. Paul Fire & Marine Ins. Co. v. Industrial Commission, 25 Ariz.App. 595, 545 P.2d 443 (1976), is inapplicable and petitioner is not entitled to relief. We disagree. The issue is not limited to whether any of the respondents actively misled petitioner (intentionally or not), see Keeler v. Industrial Commission, 122 Ariz. 16, 592 P.2d 1282 (App.1979). Rather, the broad issue in this case requires a consideration of whether petitioner's error was the result of her reasonable reliance on incorrect information. In other words, any element of "fault" is not conclusive. Even if the insurance agency was not the agent of either the carrier or employer, it did hold itself out as informed and competent to advise on workmen's compensation claims. Keller informed the agency that Cohen was dead and a widow's claim was at least contemplated, but the form supplied was inappropriate for that purpose. We believe that petitioner was justified in assuming that the agency's letter with the included form was responsive to Keller's inquiry. Her reasonable reliance on that letter was a factor to be considered in determining whether there was a meritorious excuse for the delay.

Second, after the incorrect form was filed in October 1978, the Industrial Commission took no action for seven months, until contacted by Keller in May 1979. A.R.S. § 23-1061(C) provides:

C. If the commission receives a notification of the injury, the commission shall send a claim form to the employee.

The Commission...