Mitchell v. partners/starr

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES MITCHELL, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

PARTNERS PERSONNEL MANAGEMENT SERVICES LLC, Respondent
Employer,

STARR SPECIALTY INSURANCE COMPANY, Respondent Carrier.

No. 1 CA-IC 24-0012
FILED 12-31-2024

Special Action - Industrial Commission
ICA Claim No. 20222170349
Carrier Claim No. 1375-WC-XX-XXXXXXX
The Honorable Michelle Bodi, Administrative Law Judge

AFFIRMED

COUNSEL

James Mitchell, Tucson
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Lundmark Barberich La Mont & Puig PC, Phoenix
By Kirk A. Barberich, David T. Lundmark,
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

J A C O B S, Judge:

¶1 The Industrial Commission of Arizona (“ICA”) dismissed
James Mitchell’s request for hearing as untimely. The record supports this
determination, so we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mitchell sustained an injury from a slip-and-fall accident at
work in July 2022. He received workers’ compensation benefits as a
result. In May 2023, an independent medical examination (“IME”)
concluded that Mitchell’s injuries had resolved, so he was not
permanently impaired and no longer needed active or supportive care.
Respondent Starr Specialty Insurance Company (“Starr”) stopped paying
benefits in May 2023, based on the IME, and on June 1, 2023, mailed
Mitchell a notice terminating his benefits.

¶3 On September 7, 2023, 98 days after Starr mailed its notice
terminating his benefits, Mitchell requested a hearing. Starr and
Mitchell’s employer, Partners Personnel Management Services, LLC,
moved to dismiss the hearing request as untimely.

¶4 An ICA Administrative Law Judge (“ALJ”) held a hearing
on timeliness. She heard Mitchell testify about why he filed his request
beyond the 90-day limit. He testified he received the notice ending his
benefits but that he could not recall when he received it. He further
testified he relocated twice within his apartment complex in the summer
of 2023. The notice was mailed to his first apartment number. Mitchell
acknowledged he did not tell the ICA of his new apartment numbers
during the 90-day protest period.

2
 MITCHELL v. PARTNERS/STARR
Decision of the Court

¶5 The ALJ found Respondents had mailed the notice to
Mitchell’s address of record and that Mitchell failed to file his hearing
request within the 90-day deadline. She also found Mitchell did not
exercise reasonable diligence because he did not inform the ICA or
Respondents of his address changes. She, therefore, dismissed the hearing
request. After Mitchell filed for review and the ALJ affirmed the
dismissal, Mitchell brought this statutory special action under A.R.S. § 23-
951(A) to review the lawfulness of the ALJ’s decision. We have
jurisdiction under A.R.S. § 12-120.21(A)(2).

DISCUSSION

¶6 We consider the evidence in the light most favorable to
upholding the ALJ’s decision. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105
¶ 16 (App. 2002). We affirm unless there is no reasonable basis for the
decision. See id.; Hoffman v. Brophy, 61 Ariz. 307, 312 (1944) (upholding an
award “if there is any competent evidence in the record to sustain [it]”).

¶7 A claimant has 90 days to request a hearing after a Notice of
Claim Status issues. A.R.S. § 23-947(A). The notice becomes final if a
claimant does not timely request a hearing. A.R.S. § 23-947(B). To be
excused from this deadline, claimants must exercise reasonable care and
diligence so they would likely learn of a notice during the 90 days. A.R.S.
§ 23-947(C). Diligence includes keeping the ICA and the carrier apprised
of changes to their address. A.A.C. R20-5-104(A). And even a diligent
claimant’s late filing is excused only if that claimant: (1) justifiably relied
on a statement from the employer, carrier, or ICA; (2) suffered from
insanity or legal incompetence or incapacity, including being underage, at
the time the notice was issued; or (3) proved by clear and convincing
evidence they did not receive the notice. A.R.S. § 23-947(B)(1)-(3).

¶8 None of those excusing circumstances are present here. The
ALJ found Mitchell did not reasonably update his address during the
summer of 2023. Mitchell suggests no basis to overturn that finding. And
his Request for Hearing was filed on September 6, 2023, eight days after
the 90-day protest period ended. Accordingly, the ALJ did not err in
dismissing Mitchell’s untimely request for hearing and did not err in
finding Mitchell was not diligent.

3
 MITCHELL v. PARTNERS/STARR
Decision of the Court

CONCLUSION

¶9 We affirm.

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

4