Patino v. gourmet/property

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MERCEDES ESPINOZA DE PATINO, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

GOURMET BOUTIQUE LLC, Respondent Employer,

PROPERTY & CASUALTY INS CO OF HARTFORD, Respondent Carrier.

No. 1 CA-IC 24-0007
FILED 12-19-2024

Special Action - Industrial Commission
ICA Claim No. 20221330276
Carrier Claim No. Y3VC02703
The Honorable Colleen Marmor, Administrative Law Judge

AFFIRMED

COUNSEL

Mercedes Espinoza de Patino, Buckeye
Petitioner Employee

Ritsema Law, Phoenix
By Meghann E. Fawcett
Counsel for Respondent Employer/Carrier
 PATINO v. GOURMET/PROPERTY
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Mercedes Espinoza de Patino brings this statutory special
action to review an Industrial Commission (“Commission”) award denying
her request for a hearing. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Patino worked in the freezer section for Gourmet Boutique.
Late one afternoon in May 2022, she fell and injured her knees at work. That
same day, she visited a physician, who reported that Patino had bruising
on both knees from the fall. Thereafter, Patino filed for workers’ compensation
benefits and Gourmet Boutique’s insurance carrier, Property & Casualty
Insurance Company of Hartford (“Carrier”), accepted the claim. Carrier
informed Patino through a notice of claim status that it ended benefits
effective June 2022, after a doctor found no lasting effects from the injury.

¶3 A few weeks later, Patino requested a hearing on the June
notice of claim status. The Administrative Law Judge (“ALJ”) held the
hearing in October 2022 but Patino neither appeared nor submitted
evidence for the ALJ to consider. The ALJ dismissed the request for hearing
and took no further action.

¶4 Four months after the ALJ’s ruling, Patino petitioned Carrier
to reopen her claim; it did not and mailed Patino notice of its denial in
March 2023. Patino claimed she never received this notice. Patino requested
a hearing on the March denial 16 days past the statutory deadline to request
a hearing.

¶5 The ALJ held a prehearing conference limited to determining
whether Patino had a statutorily authorized excuse for her untimely filing.
If unexcused, there could be no hearing. During the conference, the ALJ
confirmed Carrier sent notice to the proper address. And Patino confirmed
she had received all other mail and that she was the only one who used that
mailbox.

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Decision of the Court

¶6 The ALJ denied the petition to reopen and, after Patino
requested review, affirmed the award. At each stage of the proceeding,
Patino requested recommencement of her workers’ compensation benefits.
On appeal to this court, Patino challenges the ALJ’s award denying her
petition to reopen the claim and renews her request for benefits. We have
jurisdiction. A.R.S. §§ 12-120.21(A)(2) and 23-951(A) and Ariz. R. P. Spec.
Act. 10.

DISCUSSION

¶7 We review whether the ALJ abused her discretion in finding
Patino’s late filing unexcused. We consider evidence in the light most
favorable to upholding the award. Special Fund Div. v. Indus. Comm’n, 252
Ariz. 267, 269, ¶ 6 (App. 2021). We will uphold the Commission’s findings
if supported by substantial evidence. Malinski v. Indus. Comm’n, 103 Ariz.
213, 216 (1968). We review questions of law de novo. Western Millwork v.
Indus. Comm’n, 256 Ariz. 177, 180, ¶ 13 (App. 2023).

¶8 A claimant has 90 days to request a hearing after the denial of
a petition to reopen. A.R.S. § 23-947(A). An ALJ can excuse a late filing only
if: (1) the claimant justifiably relies on a representation by the Commission,
an employer, or a carrier; (2) the claimant suffered from insanity or legal
incapacity; or (3) the claimant shows by clear and convincing evidence that
she did not receive notice. A.R.S. § 23-947(B).

¶9 Patino filed her request outside the 90-day window and the
ALJ held a prehearing conference to determine whether the law excused
her late filing. The ALJ considered Patino’s testimony that she did not
receive the March notice. But Patino’s testimony did not provide clear and
convincing evidence of a legal excuse. She had a separate mailbox and
received all other claim correspondence at the same address. And she
testified that no one had misrepresented anything to her and that she was
not insane or legally incompetent around the time the Commission sent the
notice. The ALJ found Patino’s late filing unexcused on any of the three
possible grounds and properly rejected her hearing request. The ALJ thus
did not consider Patino’s request for additional benefits, and neither can
we. Stephens v. Indus. Comm’n, 114 Ariz. 92, 95 (1977) (we limit our review
of the ALJ’s decision “to the same matters which the [ALJ] could consider
in [her] review of [her] own decision.”).

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Decision of the Court

CONCLUSION

¶10 We affirm.

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

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