Opinion
No. 1 CA-IC 13-0069
10-21-2014
LUIS MANCILLA, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, COLORADO RIVER GROWERS, Respondent Employer, WAUSAU UNDERWRITERS INSURANCE, Respondent Carrier.
COUNSEL Luis Mancilla, San Luis Petitioner Employee The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix By Lisa M. LaMont Counsel for Respondents Employer and Carrier
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Special Action - Industrial Commission ICA Claim No. 20122-980191
Carrier Claim No. WC197-A41930
Deborah A. Nye, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Luis Mancilla, San Luis
Petitioner Employee
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By Lisa M. LaMont
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Associate Presiding Judge Lawrence F. Winthrop and Judge Dean M. Fink joined. GEMMILL, Judge:
Pursuant to Article 6, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Dean M. Fink, a Judge of the Maricopa County Superior Court, to sit in this matter.
¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review affirming notice of cancellation and award regarding the workers' compensation claim of Petitioner Luis Mancilla ("Mancilla"). We must decide whether the administrative law judge ("ALJ") erred by cancelling a hearing after Respondent Wausau Underwriters Insurance ("the Carrier") rescinded its prior notice of claim status. After review of the record, we affirm.
¶2 Mancilla initiated a claim for workers' compensation after an injury sustained on September 26, 2012. The record of the ICA includes two report of injury forms. One form has the worker's description of injury filled in and is signed by Mancilla, but does not include his address. The other form, dated October 17, 2012, contains the physician's initial report and an address for Mancilla. On November 13, 2012, the Carrier sent a notice of claim status (hereinafter "NCS") denying the claim for benefits, with the explanatory comment "CRITERIA NOT MET/UNABLE TO CONTACT CLAIMANT." The Carrier sent this first NCS to the address provided on the report of injury and physician's initial report. The first NCS was not protested by Mancilla and no hearing was requested.
We note that the address appearing on the report of injury form and the first NCS was not in an approved format according to the United States Postal Office. See USPS Pub. 28 at 20-21. Specifically, the address used included "PMB 1647 PO BOX 990" but the Postal Service specifies that the PO Box should come first, followed by the PMB number. Id. Our review of the ICA record reveals that Mancilla's address appears in this format only in these two documents, while all other mailings and address listings in the record are in the approved sequence. We express no opinion, however, regarding whether the first NCS reached Mancilla or whether the address submitted by or on behalf of Mancilla and used by the Carrier in the first NCS impacted the proper delivery of the first NCS.
¶3 On May 15, 2013, the Carrier sent a second NCS denying Mancilla's claim for benefits, stating: "Temporary compensation and active medical treatment terminated on April 16, 2013 because claimant was discharged." Mancilla sent a letter to the ICA on May 29, 2013, in response to the second NCS. In the letter, Mancilla said his doctor cancelled a scheduled operation because the insurance authorization failed, he had received no notification from the insurance company, and that the only communication he had received from the ICA was a statement of insurance costs which was sent to the wrong address. The ICA treated Mancilla's May 29, 2013 letter as a request for hearing, and a hearing was set for September 26, 2013 in Yuma before Judge Deborah Nye, the presiding ALJ. The Carrier then notified the ALJ that the second NCS had been issued in error, because the first NCS had not been contested and was therefore final. In a letter dated August 28, 2013 to the Carrier's counsel and Mancilla, the ALJ recommended that the Carrier rescind the second notice if it had been issued in error, as the Carrier was asserting. The ALJ also suggested that Mancilla file a new request for hearing regarding the first NCS if he thought he was "entitled to go forward with an untimely request for hearing against [the first NCS] for a reason set forth in A.R.S. §23-947(B)." The Carrier then sent a third NCS dated September 10, 2013, informing Mancilla that it was rescinding the second NCS. Based on the Carrier's rescinding of the protested second NCS, the ALJ issued a notice of cancellation and award, cancelling the September 26, 2013 hearing.
Mancilla's letters and filings with the ICA were in Spanish. But the record reveals that an English translation was created by the ICA, to assist in the processing of the claim for all letters, with the exception of this May 29, 2013 letter.
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¶4 On October 3, 2013, Mancilla filed a letter that was treated by the ICA as a request for review. Mancilla's letter did not allege any reason for an untimely request for hearing on the first NCS to be granted in accordance with Arizona Revised Statutes ("A.R.S.") section 23-947(B), as suggested by the ALJ, and did not expressly protest the first NCS or request a hearing on that notice. Instead, Mancilla discussed wanting to demonstrate several irregularities to the ALJ including his being sent to a medical clinic with a false claim number. On review, the ALJ affirmed the September 11, 2013 notice of cancellation and award. The ALJ explained that the first notice became final and was res judicata following the 90 day window allotted by A.R.S. § 23-947 for protesting an NCS, during which time no communication was received from Mancilla. The ALJ further explained that the second NCS was therefore issued erroneously and would have been found void even if the hearing had proceeded. When the Carrier rescinded the second NCS, the ALJ ruled that the issue set for the September 26 hearing had been eliminated and there was no need for a hearing.
¶5 On November 13, 2013, Mancilla filed a letter with the ICA requesting his case be reopened and explicitly explaining for the first time that a mistake had been made because he had not received the first NCS. The ICA treated this letter as a request for special action review by the Arizona Court of Appeals and forwarded the letter and record to this court. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2) and 23-951(A), as well as Rule 10 of the Arizona Rules of Procedure for Special Actions.
¶6 We have reviewed the briefs and the record. Mancilla asserts in his October 21, 2013 letter to the ICA, which was treated as a request for special action review, that he did not receive the first NCS and he requests the hearing be reopened to present his case. The issue of non-receipt of the first NCS was not asserted by Mancilla in his request for review and was not at issue in the ALJ's decision upon review. Because the facts and the law support the ALJ's findings and decision upon review to affirm the notice of cancellation and award, we affirm the award and decision upon review.
¶7 In the ALJ's letter to the Carrier and Mancilla in August 2013, she suggested Mancilla file a protest of the first NCS (dated November 13, 2012) and request a hearing regarding the denial of his claim, if he felt entitled to relief under A.R.S. § 23-947(B) on the basis that he never received the first NCS. Such a request would be untimely, but a failure to submit a timely request is excused by A.R.S. § 23-947(B)(3) if the party can prove by clear and convincing evidence that he did not receive the notice. We agree with this suggestion by the ALJ, and if Mancilla seeks an opportunity to prove that he did not receive the first NCS, he should do so by filing such a request for hearing with the ICA.
¶8 Award affirmed.