Opinion
1 CA-IC 12-0015
01-22-2013
KENARIK F BABAROUDI, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, A NEW LEAF, INC., Respondent Employer, SCF ARIZONA, Respondent Carrier.
Kenarik F. Babaroudi In Propria Persona Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent James B. Stabler, Chief Counsel SCF Arizona By Ronald C. Wills Attorneys for Respondents Employer and Carrier
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Special Action — Industrial Commission
ICA Claim No. 20071-090595
Carrier Claim No. 0711263
Administrative Law Judge Margaret A. Fraser
AWARD AFFIRMED
Kenarik F. Babaroudi
In Propria Persona
Winnetka, CA
Andrew F. Wade, Chief Counsel
The Industrial Commission of Arizona
Attorney for Respondent
Phoenix
James B. Stabler, Chief Counsel
SCF Arizona
By Ronald C. Wills
Attorneys for Respondents Employer and Carrier
Phoenix
KESSLER, Judge ¶1 Petitioner Kenarik F. Babaroudi ("Babaroudi") seeks special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review dismissing as untimely her request for hearing filed September 15, 2011. Because the administrative law judge ("ALJ") did not err by dismissing the request, we affirm the award and the decision upon review.
FACTUAL AND PROCEDURAL HISTORY
¶2 In April 2007, Babaroudi sustained an injury to her left ankle while employed with the Respondent Employer, A New Leaf, Inc. ("A New Leaf"). The Respondent Carrier, SCF Arizona ("SCF"), accepted the claim, paid benefits, and closed the claim in September 2009. ¶3 In May 2011, Babaroudi filed a petition to reopen. The petition was subsequently denied by SCF in a notice mailed on June 14, 2011. Babaroudi then filed a hearing request on September 15, 2011, stating she was still suffering from pain, swelling, and sensitivity. The ICA notified the parties that a hearing was scheduled for January 2012. ¶4 In October 2011, counsel for SCF filed a letter asserting the ICA lacked jurisdiction over the claim because Babaroudi failed to timely file her request for hearing pursuant to Arizona Revised Statutes ("A.R.S.") section 23-947(A) (2012) within ninety days after the notice was sent. It stated that because SCF mailed its notice denying the petition to reopen on June 14, 2011, the hearing request should have been filed on or before September 12, 2011. ¶5 The January 2012 hearing was limited to the jurisdictional issue of whether the late filing could be excused. Babaroudi testified that she received the notice of claim status ("NCS") denying her petition to reopen at her Chandler address; no one told her not to file a request for hearing; and although she experienced stress and a little depression, she did not suffer from any form of insanity or legal incompetence. Babaroudi further testified that at the time she received the NCS, she was stressed about her upcoming move to California. She contacted the ICA, and they sent her the necessary paperwork to file a request for hearing and for a change of doctor. That paperwork was temporarily misplaced during her move. Babaroudi eventually sent the forms to the ICA, stating that although she knew the NCS said ninety days, she thought her hearing request could be filed anytime in September. ¶6 The ALJ issued a decision upon hearing and award, stating that based on Babaroudi's testimony none of the A.R.S. § 23-947(B) excuses applied, and as a result, the hearing request was untimely and must be dismissed. Babaroudi filed a request for review of the award, and the ALJ affirmed, finding the decision was supported by the evidence. ¶7 Babaroudi filed a timely petition seeking special action review with this Court. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rule of Procedure for Special Actions 10.
DISCUSSION
¶8 We review the evidence in a light most favorable to sustaining the ALJ's award, and will affirm the decision if reasonably supported by the evidence. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). "We deferentially review the ALJ's factual findings, although we independently review the ALJ's legal conclusions." Gamez v. Indus. Comm'n, 213 Ariz. 314, 315, ¶ 9, 141 P.3d 794, 795 (App. 2006). ¶9 Section 23-947(A) provides that a hearing shall not be granted unless "the request for a hearing is filed within ninety days after the notice [is] sent." "Filed" means that the request "is in the possession of the [ICA]." A.R.S. § 23-947(B). Because SCF mailed its notice denying the petition to reopen on June 14, 2011, the hearing request should have been filed on or before September 12, 2011. See Reddell v. Indus. Comm'n, 111 Ariz. 313, 315, 528 P.2d 1254, 1256 (1974) ("[T]ime starts running the day the [ICA], [SCF], or . . . carrier places in the mail the [NCS]."). It is undisputed that Babaroudi failed to file her hearing request within the requisite time frame because the ICA did not receive it until September 15, 2011. "Failure to file with the [ICA] within the required time by a party means that the determination by the [ICA], insurance carrier or self-insuring employer is final and res judicata to all parties." A.R.S. § 23-947(B); see also Phoenix Cotton Pickery v. Indus. Comm'n, 120 Ariz. 137, 138-39, 584 P.2d 601, 602-03 (App. 1978) ("[I]t has been generally recognized that a party's failure to file a timely protest from a carrier's [NCS] entitles the notice to finality, and ousts the [ICA] of jurisdiction to consider the matters determined in the notice." (citations omitted)). ¶10 To obtain relief and prevent her claim from being dismissed for lack of jurisdiction, Babaroudi must establish that one of the enumerated exceptions under A.R.S. § 23-947(B) applies. Subsection (B) provides that a late filing shall not be excused unless: (1) the claimant justifiably relied on a representation by the ICA, employer, or carrier; (2) the claimant suffers from insanity, legal incompetence, or incapacity; or (3) the claimant shows by clear and convincing evidence that the notice was not received. None of these exceptions prescribe relief in this case. ¶11 First, Babaroudi acknowledged receiving the June 14, 2011 notice at her Chandler address. Second, there is no evidence in the record that she was suffering from insanity, incompetence, or incapacity during that time. Finally, Babaroudi testified that no one told her not to protest the notice denying her petition to reopen. We must defer to the ALJ's findings of fact where they are supported by evidence in the record. Gamez, 213 Ariz. at 315, ¶ 9, 141 P.3d at 795. As a result, none of the A.R.S. § 23-947(B) exceptions apply, and the June 14, 2011 notice became final at the end of the ninety-day period.
The only statement Babaroudi made was that she suffered from stress and a little bit of depression. Babaroudi's testimony does not establish that she was "incapacitated" under the meaning of the statute. In Harrelson v. Industrial Commission, this Court addressed the analogous issue of incapacity in filing an untimely workers' compensation claim. 144 Ariz. 369, 373, 697 P.2d 1119, 1123 (App. 1984); see A.R.S. § 23-1061(A) (Supp. 2012) (providing a one year statute of limitations to file a claim for workers' compensation). In Harrelson, we determined "that the legislature envisioned a situation where an individual would have a diminished mental or physical capacity to the extent of being unable to file a claim." 144 Ariz. at 374, 697 P.2d at 1124. We find this definition to be equally applicable to untimely hearing requests.
Here, Babaroudi testified that after receiving the notice denying her request to reopen she called the ICA, who sent her the form she needed to request a hearing. She then moved to California, where she temporarily misplaced the paperwork. Once she found it, Babaroudi filled it out and sent it to the ICA. Nothing in her testimony indicates that she was unable to file the claim due to diminished mental or physical capacity. Thus, based on the interpretation in Harrelson, we find there was reasonable evidence in the record for the ALJ to conclude that Babaroudi was not "incapacitated" under the statute.
CONCLUSION
¶12 For the foregoing reasons, we affirm the ICA's award and decision barring Babaroudi from pursuing a petition to reopen based on principles of res judicata.
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DONN KESSLER, Judge
CONCURRING: _______________
JOHN C. GEMMILL, Presiding Judge
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JON W. THOMPSON, Judge