Mansanares v. Metro auto/norguard

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RANDALL MANSANARES, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

METRO AUTO AUCTION INC., Respondent Employer,

NORGUARD INSURANCE COMPANY, Respondent Carrier.

No. 1 CA-IC 17-0065
FILED 2-28-2019

Special Action – Industrial Commission
ICA Claim No. 20153-240197
Carrier Claim No. MEWC692966-006
The Honorable C. Andrew Campbell, Administrative Law Judge

APPEAL DISMISSED

COUNSEL

Randall Mansanares, Buckeye
Petitioner
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent ICA

Jardine, Baker, Hickman, & Houston, PLLC, Phoenix
By Stephen C. Baker
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Randall Mansanares appeals a decision upon review from the
Industrial Commission of Arizona (“ICA”) affirming a 2017 decision upon
hearing that denied him temporary disability benefits but awarded medical
benefits until September 20, 2016, when his industrial injury was found to
be medically stationary. For the following reasons, we dismiss for lack of
jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On October 29, 2015, Mansanares worked as a lot attendant
for Metro Auto Auction (“Metro”) and hyperextended his right arm while
getting out of a tall truck. Metro terminated Mansanares later that day for
unrelated reasons. That night, Mansanares started to feel pain on the thumb
side of his right wrist. He sought treatment at an urgent care on November
6, where Dr. Richard Parker diagnosed him with a sprained wrist and
prescribed rest and mild pain relievers.

¶3 Mansanares filed an industrial injury claim on November 30.
He then saw Dr. Mehdy Zarandy on December 4, who prescribed mild pain
relievers and a wrist brace and imposed work restrictions of lifting, pulling,
or pushing only up to 20 pounds. Metro’s insurance company issued a
notice of claim status denying Mansanares’s claim on December 18, 2015,
and on January 11, 2016, Mansanares requested a hearing.

¶4 On February 2, 2016, Mansanares saw Dr. Kent Chou, a
board-certified orthopedic surgeon. Chou diagnosed Mansanares with de

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Quervain’s tenosynovitis, a condition characterized by inflammation of the
thumb-side tendons in the wrist. Chou treated this condition with a
corticosteroid injection.

¶5 Dr. Peter Campbell, a board-certified orthopedic surgeon,
conducted an Independent Medical Examination (“IME”) of Mansanares on
March 22, 2016. Campbell accepted as true that Mansanares had de
Quervain’s tenosynovitis at one time, and stated the diagnosis was
consistent with the location of the injection, but opined that Mansanares’s
injury was stationary with no permanent impairment as of the March 22
IME. Campbell then wrote two addenda to his IME report after reviewing
records from Chou’s office and Mansanares’s primary physician. Campbell
stated each time that the additional information he reviewed did not alter
his opinion.

¶6 After a hearing, an ALJ ruled on August 10, 2016, that
Mansanares’s injury was compensable, but did not decide the amount or
nature of his benefits or when his injury became stationary, if at all. Metro’s
insurance company subsequently issued a notice of claim status accepting
Mansanares’s claim, but stated that it owed Mansanares nothing more
because his industrial injury was stationary without permanent
impairment as of March 22, 2016. Mansanares then made a series of
demands for payment on Metro and its insurance carrier; he also filed these
with the ICA. The ALJ treated the first of these demands as a bad faith claim
and denied it after briefing. Mansares did not seek review of that decision.
Upon receiving the second demand for payment, the ALJ ruled that he no
longer had jurisdiction over the claim and that the amount of benefits was
outside the scope of the hearing over which he presided. Instead, he treated
the demand as a request for a hearing on the amount of benefits.

¶7 A different ALJ heard that claim and took testimony from
Mansanares, Chou, and Campbell.

¶8 Chou testified that after he administered the injection, he saw
Mansanares again on March 9, 2016, at which time the de Quervain’s
tenosynovitis had started to heal. He testified Mansanares reported “that
his pain was 50 percent better.” Chou recommended that Mansanares use
a splint on his wrist and advised Mansanares “to watch how he lifts,” but
did not prescribe another injection at that examination. When Chou saw
Mansanares on April 28, however, Mansanares reported his pain had
suddenly returned in the middle of April after almost completely
subsiding. Chou recommended another injection, but Mansanares wanted
an MRI, which was performed on May 13.

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¶9 The MRI showed that Mansanares’s extensor pollicis brevis
tendon was nearly or completely torn, and another affected tendon was
chronically inflamed, but not torn. Chou testified that a tear in the extensor
pollicis brevis tendon is “very very rare,” but regardless, “that tendon is
completely expendable” because another tendon can serve the same
functions. Chou recommended either another injection or exploratory
surgery, but Mansanares declined the treatments in order to seek a second
opinion.

¶10 Campbell reexamined Mansanares in March 2017. He
testified that after the second examination and a review of records from
Chou’s office, his opinion on the industrial injury did not change. Further,
he agreed with Chou that the extensor pollicis brevis tendon is redundant,
stating “[t]hat’s a tendon we often borrow in surgery to use for a tendon
graft.”

¶11 The ALJ entered a decision upon hearing on August 31, 2017.
The ALJ found Campbell’s testimony more probably correct and that
Mansanares’s industrial injury was stationary as of September 20, 2016. The
ALJ further held Mansanares failed to meet his burden of showing
entitlement to temporary disability benefits, either total or partial, and
further failed to proffer evidence that he attempted to mitigate his damages.
Mansanares requested review, and on October 12, 2017, the ALJ affirmed
the decision upon hearing. Mansanares then petitioned this Court for a writ
of certiorari. See Ariz. Rev. Stat. (“A.R.S.”) §§ 23-943(H), -951(A) (2019);
Ariz. R. P. for Spec. Actions 10; Watts v. Indus. Comm’n, 180 Ariz. 512, 513
(1994).

DISCUSSION

¶12 This Court has an independent duty to examine whether we
have jurisdiction over an appeal. Ochoa v. Bojorquez, 245 Ariz. 535, 535–36,
¶ 2 (App. 2018). Failure to timely file a petition for certiorari with this court
divests us of jurisdiction. Smith v. Indus. Comm’n, 27 Ariz. App. 100, 101
(1976) (quoting Contreras v. Indus. Comm’n, 98 Ariz. 221, 223 (1965)). Because
Mansanares did not timely file his petition, we have no jurisdiction over the
petition.

¶13 “The decision upon review shall be final unless within thirty
days after the date of mailing of copies of such decision to the parties, one
of the parties applies to the court of appeals for a writ of certiorari pursuant
to § 23-951.” A.R.S. 23-943(H). Further, the “rules of civil procedure relating
to certiorari shall apply so far as applicable and not in conflict with this

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chapter.” A.R.S. § 23-951(E); see also Ariz. R. P. Spec. Actions 10(k); Ariz. R.
Civ. App. P. 5(a). We thus compute time periods according to Arizona Rule
of Civil Procedure 6(a). That rule states that if the last day is a Saturday,
Sunday, or legal holiday, “the period runs to the next day that is not a
Saturday, Sunday, or legal holiday.” Ariz. R. Civ. P. 6(a)(3); cf. Ariz. Admin.
Code R20-5-105(B).

¶14 The ALJ mailed the Decision Upon Review Affirming
Decision Upon Hearing and Findings and Award for Temporary Disability
on October 12, 2017. The 30-day filing period expired on November 11, a
Saturday, making November 13 the last day for Mansanares to file his
petition for a writ in this court. Mansanares mailed his petition on
November 13, and we received it on November 14, 2017. A petition for a
writ must be received within the 30-day period, not merely mailed within
that period. Smith, 27 Ariz. App. at 101–02. Mansanares’s petition was
untimely, divesting us of jurisdiction.

CONCLUSION

¶15 For the foregoing reasons, we dismiss Mansares's petition for
lack of jurisdiction. Metro’s Motion to Strike Portions of Reply Brief, filed
December 20, 2018, and Metro’s Motion to Strike Notice of Errata, filed
February 25, 2019, each is denied as moot.

AMY M. WOOD • Clerk of the Court
FILED: AA

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