Collins v. ICA/A Rainbow/SCF

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.34 DIVISION ONE FILED: 01/26/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE TIMOTHY L. COLLINS, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, A RAINBOW CO. RAINBOW CONSTRUCTION, Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-IC 11-0046 DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20102-810241 Carrier Claim No. 0655120 The Honorable Michael A. Mosesso, Administrative Law Judge AFFIRMED Timothy L. Collins Petitioner in Propria Persona Fort Dodge, IA Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix James B. Stabler, Chief Counsel State Compensation Fund By Ronald C. Wills Attorneys for Respondent Employer and Carrier Phoenix T I M M E R, Judge ¶1 This Commission of is a Arizona special action ( ICA ) review decision of upon an Industrial review denying Timothy L. Collins workers compensation claim for failure to file within the one-year statute of limitations. Stat. ( A.R.S. ) section 23-1061(A) (Supp. Ariz. Rev. 2010). 1 Collins argues the administrative law judge ( ALJ ) erred in entering his decision inaccurate and because (1) untruthful he was erroneously testimony, and (2) influenced he should by have granted Collins a continuance without being asked because one of Collins requested and subpoenaed witnesses was not present to testify. For the following reasons, we disagree and therefore affirm. BACKGROUND ¶2 in During the night of March 9, 2006, Collins was asleep a trailer owned by his employer, ( Rainbow ), and parked on its property. 1 Rainbow Demolition The property had been We cite to the current version of the applicable statute because no revisions material to this decision have since been made. 2 robbed on several occasions, and Rainbow wanted Collins to sleep in the trailer in order to notify police of any trespassers he observed. A fire in the trailer broke out, and, attempting to flee, Collins became temporarily trapped. while Before he could escape, Collins suffered deep second-and third-degree burns to his face and hands as well as significant inhalation injury. ¶3 After the injury, Collins continued to work for Rainbow for approximately one year, but his ability to perform manual labor was significantly inhibited by his injuries. Collins was initially given less physical assignments, but he still suffered the effects of his injuries and struggled with his job. Rainbow reduced his hours and ultimately discharged him from employment in 2007. ¶4 Collins filed his claim for workers compensation on October 7, 2010, over four and one-half years after he sustained his injuries. After a hearing, the ALJ denied the claim as noncompensable because Collins had not timely filed it. After the ALJ affirmed the decision upon review, Collins filed this timely petition for special action. Ariz. R.P. Spec. Act. 10. DISCUSSION I. ¶5 Untimely filing Collins argues the ALJ deprived him of a fair hearing because the respondent employer/carrier elicited inaccurate and 3 false testimony from witnesses concerning the ownership of Rainbow, which therefore casts doubt on all testimony offered by these witnesses. The accuracy of the witnesses testimony and its effect on the ALJ s rulings, however, are immaterial if the ALJ was correct in ruling that Collins claim was time-barred. We therefore turn to that issue. ¶6 All claims seeking compensation for injuries must be filed in writing with the ICA within one year of the date the injury was sustained or the claim accrued. A.R.S. § 23-1061(A). The one-year period begins when the claimant, in the exercise of reasonable diligence, discovers a disabling condition and employment. relationship between Nelson v. Indus. Comm n, 120 Ariz. 278, 281-82, 585 P.2d 887, 890-91 (App. 1978). claim is not timely filed, the a ICA lacks If a jurisdiction to consider it unless the employee delayed filing a claim because (1) he justifiably relied on a material representation made by the ICA, his employer, or the insurance carrier, or (2) he was insane, legally incompetent, or incapacitated at the time of the injury. 2 A.R.S. § 23-1061(A). We defer to the ALJ s factual findings regarding the timeliness of Collins claim if they are 2 If an employee becomes insane, legally incompetent, or incapacitated during the one-year period, the limitations period is suspended. A.R.S. § 23-1061(A). Collins does not contend that occurred here. 4 reasonably supported by the evidence. Cornelson v. Indus. Comm n, 199 Ariz. 269, 271, ¶ 10, 17 P.3d 114, 116 (App. 2001). ¶7 The record supports the ALJ s finding that Collins did not timely file his claim. Collins does not contest he knew on the date of the fire that his injuries were related to his employment. Nelson, 120 Ariz. at 281-82, 585 P.2d at 890-91. Indeed, he was sleeping in the trailer at Rainbow s direction. Because Collins filed his claim more than three years after expiration of the one-year limitations period, he timely filed his claim only if he met one of the statutory exceptions. ¶8 Collins does not contend he was insane, legally incompetent, or incapacitated at the time of the trailer fire or thereafter, and the evidence does not support such a finding. Indeed, Collins testified that he was competent and capable of filing a claim. Rather, he effectively asserts he justifiably relied on material representations made by Rainbow that led him to falsely believe Rainbow had filed a claim on his behalf. At the hearing, Collins testified his supervisors had repeatedly told him the trailer fire had cost [them a lot] of money, that he was lucky both because Rainbow would insure him and because his bills were being paid. 3 Collins that a claim had Although no one explicitly told been 3 filed on his behalf, Collins Collins discovered in 2010 that no claim had been filed and that the Arizona Health Care Cost Containment System ( AHCCCS ) had been paying his bills. 5 contends this statements, was an particularly implication as of Rainbow had Rainbow s filed repeated claims on his behalf previously and Collins was not receiving medical bills. ¶9 We reject Collins argument for two reasons. First, Rainbow never made a material representation to him that it had filed a claim on his behalf or paid any compensation fees as a result of the trailer fire. workers In short, there was no representation to justifiably rely upon. A.R.S. § 23-1061(A). ¶10 Second, even assuming Rainbow s statements constituted material representations, extended period of time excuse a late filing. Collins was Id. not reliance on justifiable, them as for an required to During the four and one-half years between the trailer fire and initiation of his claim, Collins never received a claim number from the ICA or notification of workers compensation benefits. By his own admission, Collins had prior experience with workers compensation, so presumably he had received correspondence claims. The ALJ extended reliance could on have from the reasonably Rainbow s ICA regarding found that representations those Collins was not justifiable in light of the lack of communication from the ICA or anyone else regarding such a claim. Certainly, Collins was not entitled to sit by for four and one-half years and refrain from taking any action to ensure a claim was properly filed on 6 his behalf and progressing through the ICA particularly after Rainbow discharged him from employment in 2007. ¶11 For Collins these reasons, did not timely jurisdiction to adjudicate the file ALJ his the correctly claim, and claim. found the Thus, ALJ that lacked whether the witnesses lied about matters unrelated to the timeliness of the filing is irrelevant. The court lacked jurisdiction to consider the merits of the claim. II. ¶12 Continuance Collins apparently argues the ALJ erred by not continuing the hearing because one of his subpoenaed witnesses did not attend the hearing as directed. to ask for a continuance, he has Because Collins failed waived this issue absent fundamental error, which is applied sparingly outside criminal cases. Williams v. Thude, 188 Ariz. 257, 260, 934 P.2d 1349, 1352 (1997). Fundamental error occurs when a party loses an essential right, was unable to receive a fair trial, or where the error goes to the foundation of the party s theory of the case. See State v. Valenzuela, 194 Ariz. 404, 407, ¶ 15, 984 P.2d 12, 15 (1999). ¶13 specify We do not detect fundamental error. the Mario West. anticipated testimony from his Collins fails to missing witness, Significantly, Collins fails to state that West would have testified regarding Collins justifiable reliance on 7 Rainbow s statements to wait four and one-half years to file a claim. As explained, until the ALJ established its jurisdiction by ensuring the timeliness of Collins claim, testimony about the substantive merit of the claim was not pertinent. Collins had an opportunity to inform the ALJ of the significance of West s testimony after the ALJ informed Collins that West did not appear as directed at the hearing. anything in response. Collins did not say Consequently, because nothing alerted the ALJ that West could shed light on the timeliness issue, the ALJ did not commit fundamental error by failing to decide on his own to continue the hearing in order to secure West s appearance. See Ariz. Admin. Code R20-5-141(B) (providing ALJ can grant a continuance if a subpoenaed witness fails to appear if the party requesting the continuance can demonstrate (1) [t]he testimony of the witness is material and necessary and (2) [g]ood cause is shown as to why the witness failed to appear. ). ¶14 The ALJ did not commit fundamental error by failing to continue the representation hearing to regarding secure the West s significance testimony. 8 appearance of his absent a anticipated CONCLUSION ¶15 For the foregoing reasons, we affirm. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Maurice Portley, Presiding Judge /s/ Andrew W. Gould, Judge 9

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