Trull, In re
| Decision Date | 16 April 1974 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 21 Ariz.App. 511,520 P.2d 1188 |
| Parties | In re Jimmy TRULL (Deceased). Mrs. Willardean TRULL, widow and custodian of minor children, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Del Sol Citrus Company, Inc., Respondent Employer, Northern Insurance Co. of New York (c/o Maryland Casualty Company), Respondent Carrier. 868. |
| Court | Arizona Court of Appeals |
The issue in this case is whether a timely Request for Hearing was filed by the petitioner after she received Notice of Claim Status denying her claim.
Jimmy Trull was killed in a truck collision at Yuma, Arizona. Petitioner Willardean P. Trull, as widow and custodian of their five minor children, claims her husband was employed by Del Sol Citrus Company, Inc. at the time of the accident and that she and the children are entitled to benefits under the Arizona Workmen's Compensation Act. She filed a widow's claim on December 10, 1971 and the Respondent Insurance Carrier issued its Notice of Claim Status on December 29, 1971, denying her claim. The claim was denied on two grounds: (1) Jimmy Trull's death was not the result of an injury by accident arising out of and in the course of his employment, and (2) Willardean P. Trull was not the lawful widow of Jimmy Trull.
A Request for Hearing was filed by the petitioner with the Industrial Commission on February 29, 1972. The Respondent Insurance Carrier then moved for dismissal of the Request for Hearing on the basis that it was not timely filed under the provisions of ARS § 23--947:
' § 23--947. Time within which hearing must be requested
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 after the notice sent by certified mail under the provisions of subsection F of § 23--1061 or within sixty days of notice of a determination by the commission, insurance carrier or self-insuring employer under § 23--1047 or § 23--1061. As amended Laws 1971, Ch. 173, § 12.'
It appears in this case that the delay in filing was caused in part by the fact the petitioner and her five minor children resided in Alabama and it was difficult and time-consuming to communicate with her two Arizona attorneys, one residing in Tucson and the other in Yuma. The processing of her claim was further delayed by legal proceedings in Alabama that were necessary to first determine the marital status of the petitioner and her standing to bring the Arizona claim as the widow of the decedent.
On June 21, 1972 the Hearing Officer found that the Request for Hearing was filed sixty-one days after the Notice of Claim Status and was therefore one day late; that there was no basis upon which to excuse the untimely filing; that the Industrial Commission lacked jurisdiction and that the Request for Hearing should be dismissed. This Decision Upon Hearing was affirmed by the Industrial Commission and a Writ of Certiorari followed. Although the petitioner raises several questions for review, this case turns on whether the Industrial Commission lacks jurisdiction to proceed with the claim by reason of the untimely filing of the Request for Hearing.
The Appellate Courts of this State have generally held that a failure to timely file protest after notice of an award in industrial cases deprives the Industrial Commission of jurisdiction to further consider the matter. Russell v. Industrial Commission, 104 Ariz. 548, 456 P.2d 918 (1969); Davila v. Industrial Commission, 98 Ariz. 258, 403 P.2d 812 (1965); Garcia v. Industrial Commission, 20 Ariz.App. 145, 510 P.2d 1050 (1973); Saline v. Industrial Commission, 16 Ariz.App. 204, 492 P.2d 453 (1972); Walsh v. Industrial Commission, 16 Ariz.App. 133, 491 P.2d 856 (1971). However, the Arizona Supreme Court has made exceptions to alleviate a harsh result and held that under certain circumstances the Commission has discretion to relieve an applicant of the consequences of this failure to timely file a claim. Parsons v. Industrial Commission, 98 Ariz. 74, 402 P.2d 20 (1965); Jones v. Industrial Commission, 96 Ariz. 283, 394 P.2d 213 (1964); McCormick v. Industrial Commission, 96 Ariz. 88, 392 P.2d 299 (1964).
In the recent landmark case of Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972), our Supreme Court realized the unyielding harshness of our decisions in this area and stated:
'We are aware that in the past we have held that a failure to timely file after notice of termination of an award deprives the Industrial Commission of jurisdiction to further consider the matter.'
In Parsons v. Bekins Freight, supra, the Request for Hearing was ten days late under the 60 day limit imposed by the provisions of ARS §...
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