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Hart v. Industrial Commission3/1/1994
NOYES, Judge
We are asked to set aside an Industrial Commission award that dismissed as untimely the request for hearing filed by Petitioners, an uninsured employer. Three questions are presented:
1. Is Arizona Revised Statutes ("A.R.S.") section 23-947(A), which limits an uninsured employer's protest period to thirty days, unconstitutional?
2. Were the notices of determination issued in this case so ambiguous and confusing that they denied the employer due process of law?
3. Did a notice of determination amending two prior notices of determination prevent the earlier notices from becoming final?
Concluding that the answer to each question is "No," we affirm the Commission's award.
I.
On November 22, 1991, Alex Kara (Claimant) filed a workers' compensation claim against "Napoli Bakery or National Bakery Co.," alleging that he had sustained an industrial back injury on October 26, 1991. The Industrial Commission could not locate workers' compensation coverage for "National Bakery," so it forwarded the claim to the No Insurance Section/Special Fund Division ("the Special Fund"). After investigating the claim, the Special Fund issued a Notice of Determination on January 15, 1992 (the January 15 Notice). This Notice accepted the claim for benefits and listed "National Bakeries of Arizona, Inc. dba Napoli Bakery" ("National") as the uninsured employer. The January 15 Notice was served upon Claimant, his attorney, National, and the corporation's statutory agent. On January 31, 1992, the Special Fund issued a Notice of Determination setting the Claimant's average monthly wage (the January 31 Notice).
On February 12, 1992, David Sosa ("Sosa"), a claims specialist for the Special Fund, received a telephone call from Robert M. Hart ("Hart"), National's owner. Hart acknowledged receipt of the January 15 Notice and he advised that Claimant was not employed by National. After Sosa explained the employer's thirty-day protest period, Hart responded that he would request a hearing. On February 18, 1992, Hart filed an untimely letter protesting the Special Fund's determination ("the protest letter"). The protest letter, which was dated February 13, 1992, stated in part: "Alex Kara was not an employee of National Bakeries of Arizona, Inc. on the date of his claim, October 26, 1991. National Bakeries of Arizona, Inc. was not Incoppported until October 28, 1991 (Not DBA of Napoli or Great West Baking) this is not the proper party." Sosa sent Hart a letter acknowledging receipt of his protest and asking him to complete and return a Request for Hearing form. Hart returned the Request for Hearing form on March 4, 1992, but he left blank the parts of the form asking which Notice was being protested and why a hearing was being requested.
After investigating the corporate status of Claimant's employer, the Special Fund issued a Notice of Determination on March 6, 1992, correcting the January 15 and January 31 Notices to indicate the employer's name as "Robert M. Hart & Jane Doe Hart; Anthony W. Trifari & Jane Doe Trifari dba National Bakeries of Arizona, Inc. aka Napoli Bakery" ("the March 6 Notice"). On April 16, 1992, the Commission issued a Notice of Hearing. In a letter dated April 29, 1992, the administrative law Judge ("ALJ") informed the parties that the sole hearing issue would be whether the untimeliness of the February 18 protest letter was legally excusable.
At the hearing, Hart testified that he believed the protest letter was timely because he thought he had thirty working days from the January 31 Notice to request a hearing. He also stated that when he return
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