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Borquez v. Industrial Commission12/10/1991
This is a special action review of an Industrial Commission of Arizona award dismissing an untimely hearing request. Two issues are presented on review: (1) whether the administrative law judge erred by failing to excuse the untimely hearing request; and (2) whether the November 16, 1989, notice of average monthly wage was void pursuant to Roseberry v. Industrial Comm'n, 113 Ariz. 66, 546 P.2d 802 (1976). Because the petitioner employee (claimant) failed to establish justifiable reliance on a representation by the Industrial Commission, respondent employer, Excel Industries (Excel), or respondent carrier, Orion Group (Orion), and because Roseberry is factually distinguishable, we affirm.
FACTS
On October 19, 1989, the claimant sustained an industrial back injury . He filed a workers' compensation claim, which was accepted for benefits. On November 16,
1989, a notice of average monthly wage was issued, and on February 22, 1990, the claimant filed an untimely hearing request. One hearing was held limited to the issue of jurisdiction. A stipulation was entered into at the inception of the hearing, which established that the claimant's average monthly wage was $1225.42, based upon the three months prior to the date of injury , rather than $1131.55, as stated in the notice of average monthly wage.
The claimant testified that he reviewed the notice of average monthly wage when it came and noticed that it erroneously stated that he had no dependents, when in fact he had two. He did not take any action to correct this error because he felt that it was unimportant. Despite that error, the claimant assumed that the notice correctly reflected his wages. He testified that he had no idea how the Industrial Commission calculated his average monthly wage and, therefore, he relied on their calculation. He stated that if he had any question about his wage, he would have contacted the Industrial Commission. The claimant also stated that he read the notice and understood that he had a 90-day protest period. In February, 1990, the claimant saw an attorney regarding a medical question and the attorney noticed that the average monthly wage was incorrect. The claimant stated that he had a ninth grade education, was a laborer, and his wages varied each month.
Mark Garcia, an Industrial Commission wage technician, testified that he made the average monthly wage calculations in the claimant's case. In arriving at the claimant's average monthly wage, Mr. Garcia relied on information provided by Excel and Orion on the November 2, 1989, notice of claim status (ICA Form No. 104) and average monthly wage work sheet (ICA Form No. 108). He stated that he did not have the claim file at the time he performed his average monthly wage calculations, and he did not attempt to check the information provided on the ICA Form Nos. 104 and 108 to determine whether it was correct.
Mr. Garcia testified that 98 percent of average monthly wages are set based on a review of the ICA Form Nos. 104 and 108 alone. He stated that if the claimant had contacted him regarding the notice of average monthly wage, he would have obtained the claim file and attempted to further verify his calculations. In this case, Mr. Garcia never received any inquiry regarding the claimant's average monthly wage. Finally, he conceded that his average monthly wage calculation was incorrect because he received erroneous information from Excel and Orion on the ICA Form Nos. 104 and 108.
On August 21, 1990, the administrative law judge entered an award dismissing the requ
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