WALSH v. INDUSTRIAL COMMISSION, 16 Ariz. App. 133 (1971)

491 P.2d 856

No. 1 CA-IC 683.Court of Appeals of Arizona, Division One, Department A.
December 20, 1971.

On writ of certiorari to review the lawfulness of an award of the Industrial Commission, Claim No. 918-96-97, which found that it did not have jurisdiction, the Court of Appeals, Stevens, P. J., held that where, on April 2, 1970, compensation carrier

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issued injured workman a notice of claim status, advising him that his claim for compensation had been denied, and where that notice warned claimant that, if he was aggrieved by the notice, he could apply for a hearing by filing a written application at any office of the Industrial Commission within 60 days after the April 2, 1970 mailing of said notice, the petition for a hearing filed by claimant on June 25, 1970 was not timely and the Industrial Commission was thus without jurisdiction; and irrespective of the jurisdictional question, the award of noncompensability had evidentiary support.

Affirmed.

Lawrence Ollason, Tucson, for petitioner.

William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Robert K. Park, Chief Counsel, State Compensation Fund by Dee-Dee Samet, Phoenix, for respondent-carrier.

STEVENS, Presiding Judge.

This case is before the Court by writ of certiorari to review the lawfulness of an award and findings of The Industrial Commission of Arizona issued on 10 June 1971, affirming a previous award of 9 April 1971, finding that the Commission did not have jurisdiction due to the petitioner’s failure to timely request a hearing following the denial of a claim by notice of claim status dated 2 April 1970.

The petitioner filed a workman’s report of injury on 4 February 1970. On 2 April 1970 the carrier issued a notice of claim status, advising petitioner that his claim had been denied. The printed from carried the following caveat:

“NOTICE TO CLAIMANT:

If you are aggrieved by this notice you may apply for a hearing by filing a written application at any office of the Industrial Commission of Arizona within sixty (60) days after the date of mailing of this notice.”

The notice was mailed the same date.

The petitioner filed a petition for hearing on 25 June 1970. The petition was not timely. Parsons v. Industrial Commission, 14 Ariz. App. 218, 482 P.2d 467 (1971).[1] See also Employers Mutual Liability Insurance Company of Wisconsin v. Industrial Commission, 15 Ariz. App. 590, 490 P.2d 35 (1971).

Notwithstanding the jurisdictional question, hearings were conducted. The Fund’s brief urges not only the jurisdictional question but also urges that the award of noncompensability is supported by the evidence. We too have reviewed the evidence and we agree with the Fund.

The award of the Commission is affirmed.

CASE and DONOFRIO, JJ., concur.

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