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Hayes v. Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division, Department A

July 11, 2013

ALEGRIA HAYES, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, GABRIEL COUSENS, M.D., Respondent Employer, THE HARTFORD, Respondent Insurer.

Not for Publication Rule 28, Rules of Civil Appellate Procedure

ICA Claim No. 20102-360067 Insurer No. YKX88239C Jacqueline Wohl, Administrative Law Judge

The Hansen Firm, PLLC By Deborah P. Hansen Attorneys for Petitioner Employee.

The Industrial Commission of Arizona, Andrew F. Wade Attorney for Respondent.

Klein, Doherty, Lundmark, Barberich & La Mont, P.C. Eric W. Slavin Tucson, Attorneys for Respondents Employer and Insurer.

MEMORANDUM DECISION

HOWARD, Chief Judge.

¶1 In this statutory special action, petitioner Alegria Hayes challenges the Administrative Law Judge's (ALJ) denial of her request for a hearing as to her Notice of Average Monthly Wage (AMW). Because the ALJ did not err, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the Industrial Commission's (IC's) findings. Polanco v. Indus. Comm'n , 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007). In August 2010, Hayes was injured in a workplace accident and filed a claim for worker's compensation. In her filing, Hayes listed her address as "28 Old Hwy Lane, " which was her residential address, rather than her mailing address. The IC mistakenly transcribed that address as "2801 Highway Lane." When the IC initially mailed Hayes's notice of AMW, it sent the notice to the incorrect residential address, and the notice was returned as undeliverable. This notice was dated October 6, 2010, and included the following language:

If you do not agree with this NOTICE and wish a hearing on the matter, your written request for hearing must be received at either office of the [IC] listed below within NINETY (90) DAYS after the date of mailing of this NOTICE . . . IF NO SUCH REQUEST FOR HEARING IS RECEIVED WITHIN THAT NINETY DAY PERIOD, THIS NOTICE IS FINAL.

¶3 On February 2, 2011, the IC remailed the notice to the correct address. The second notice was still dated October 6, 2010, but also included a "Certificate of Service" stating that the notice was being "remailed" and that it had been sent on "2/2/11." Hayes testified that when she received the second notice of AMW in February or March 2011, she thought the wage calculation was incorrect, but she also believed that, because the notice was dated October 6, 2010, and stated that it was not appealable after ninety days, she could not do anything.

¶4 At some unspecified time after receiving the February notice of AMW, Hayes called Connie Owens, her case manager with the insurance carrier, "because [Hayes] received a check that didn't make sense to [her]." Hayes was told that the amount was a miscalculation and not to worry about it.

¶5 Although Hayes did not receive the AMW until February or March 2011, she did receive other documents relating to her claim before then. She began receiving checks in September 2010. Also, on September 27, 2010, the insurance carrier mailed a "Notice of Claim Status" to Hayes at the correct mailing address. This notice included a check for $689.94, explained that the amount was based on an attached average monthly wage calculation, and stated that the calculation was "subject to final determination by the Industrial Commission of Arizona within [thirty] days." It also stated that it could be appealed by contacting the IC. Although Hayes testified that she did not receive this notice, the ALJ found that her testimony on that point was not credible.

¶6 On March 8, 2012, more than one year after receiving the February AMW, Hayes filed a request for hearing. The ALJ dismissed the request as untimely, finding that based on the September 27, 2010 Notice of Claim Status, Hayes "knew or should have known of the Notice of Average Monthly Wage during the [ninety] day filing period." The ALJ also found Hayes had not been reasonably diligent in her efforts to ensure her compensation was correct when she ...


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