Russell v. blackman/sentinel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BILLIE RUSSELL, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

RUSSELL S. BLACKMAN, Respondent Employer,

SENTINEL INS CO, Respondent Carrier.

No. 1 CA-IC 20-0029
FILED 1-26-2021

Special Action - Industrial Commission
ICA Claim No. 20190-730249
Carrier Claim No. Y2EC09681
The Honorable Kenneth Joseph Hill, Administrative Law Judge

AFFIRMED

COUNSEL

Billie Russell, Peoria
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Norton & Brozina, P.C., Phoenix
By Christopher S. Norton, Richie J. Edwards
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Petitioner Billie Russell appeals an award issued by the
Industrial Commission of Arizona (“ICA”), finding that she filed her
worker’s compensation claim later than the one-year deadline. Because of
that late filing, the ICA lacked jurisdiction to hear the merits of her claim.
We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The uncontested record shows Russell filed her claim with the
ICA on March 7, 2019, alleging she had a work-related injury in her right
elbow. She identified the date of injury as January 26, 2018, the date that
she saw her treating physician, Dr. Jason McNeil, and received a
corticosteroid shot in her elbow. Russell testified at the hearing that during
the January 26, 2018 office visit, Dr. McNeal told her that her elbow injury
was work-related. Russell described the elbow injury not as an acute injury,
but one gradually brought on by repetitive motions at work, causing the
symptoms to become worse over time. She testified that she used the
January 26, 2018 date as the “date of injury” because that was the first time
she saw Dr. McNeil for the elbow injury. However, she did not file a
worker’s compensation claim at that time because she was going to “take
care of it” herself. She did not file her claim until March 2019 because that
was when Dr. McNeil told her she required surgery. Dr. McNeil testified
that he told Russell that her elbow injury was related to her work as a dental
assistant, and he was certain he had done so even before the January 26,
2018 office visit. His office visit notes from January 26, 2018 confirm he
believed at the time that a work-related condition caused her elbow pain.

¶3 The administrative law judge found that Russell knew or
should have known she had an industrial injury no later than January 26,
2018. Thus, she had until January 26, 2019, to file her claim. Because she

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 RUSSELL v. BLACKMAN/SENTINEL
Decision of the Court

did not meet that deadline, the administrative law judge found the ICA did
not have jurisdiction to decide whether her claim is compensable.

DISCUSSION

¶4 Arizona Revised Statutes (“A.R.S.”) section 23-1061(A)
provides, in the absence of certain exceptions, one year to file a worker’s
compensation claim. Russell does not allege the existence of any exception.
This statutory time limit applies to acute and gradual injuries alike. Nelson
v. Indus. Comm’n, 134 Ariz. 369, 371 (1982). The year begins to run when the
injury occurs or accrues. A.R.S. § 23-1061(A). An injury accrues “when the
injury becomes manifest or when the claimant knows or in the exercise of
reasonable diligence should know that the claimant has sustained a
compensable injury.” Id. The ICA and the courts do not have jurisdiction
to hear untimely filed claims. Id.

¶5 We will affirm an award “if it is reasonably supported by the
evidence after reviewing the evidence in a light most favorable to
sustaining the award.” Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002). On appeal, Russell argues she believed she could not have
filed a claim in January 2018 because her injury was just “tendonitis,” and
her claim would have been “inappropriate.” She offers no legal authority
for that argument, and we reject it as contrary to worker’s compensation
law in Arizona. Dr. McNeil’s testimony, that he told Russell about the
work-related cause of her elbow problem prior to January 2018, and his
notes from the office visit in January 2018, confirm he believed the injury
was work-related on that date. The record plainly shows Russell knew her
injury was related to her work activities as of January 2018 when Dr. McNeil
told her. She admitted it in her testimony. There is, therefore, substantial
evidence upon which the administrative law judge could reasonably rely to
find that the injury accrued in January 2018. Russell’s March 2019 claim is
clearly outside the one-year filing deadline.

CONCLUSION

¶6 We affirm the award finding that neither the ICA nor this
court has jurisdiction to hear the merits of Russell’s claim.

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