Appeals court: Injured workers should act promptly - or forfeit their rights - East Valley Tribune: Business

Appeals court: Injured workers should act promptly - or forfeit their rights

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Posted: Friday, November 5, 2010 12:17 pm | Updated: 5:06 pm, Mon Nov 8, 2010.

Injured workers who don't believe they're getting the proper payments need to act promptly or forfeit their rights, the Arizona Court of Appeals has ruled.

The judges rejected arguments by Deborah Phoenix that she had a legitimate reason for delaying her protest. They also brushed aside her legal argument that the notice she got of her compensation should be found legally void.

Court records show that Phoenix was an employee of Precision Shooting Equipment in Tucson in June 2008 when she injured her thumb.

The following month she got a notice from SCF Arizona, her employer's insurance carrier, accepting the claim. She also got a separate notice calculating her average monthly wage at $506.

That wage, on which an injured worker's benefits are calculated, was confirmed in a separate finding by the Industrial Commission.

Part of that latter notice included language advising Phoenix that if she did not agree, she had 90 days to file a written request for a hearing.

"If no such request for a hearing is received within that 90-day period, this notice is final," it read.

One year later, Phoenix filed a request for a hearing. A month after that she filed another request, clarifying that she wished to challenge her wage calculation.

At a hearing, Phoenix admitted to the administrative law judge she had received the commission notice. She also admitted she had not read the entire notice.

But Phoenix said believed she had diligently pursued the issue because she had called SCF Arizona in July 2008 in an unsuccessful attempt to adjust the wage figure.

The administrative law judge ruled against her, resulting in this appeal.

Appellate Judge Peter Eckerstrom said state law requires an injured worker to be notified by both the employer's insurer and the industrial commission of the average wage which would be used to calculate compensation. That was done here.

He also said the deadline to appeal is set in law.

Eckerstrom said there are only "limited circumstances" under which a tardy request for adjustment of that wage figure can be considered.

One of those, he said, is if the worker does not request a hearing because of "justifiable reliance on a representation by the commission, employer or (insurance) carrier." And he noted the same law says a worker cannot claim "justifiable reliance" unless he or she "made reasonably diligent efforts to verify the representation."

If the deadline is missed and the delay is not excused, then the wage determination is final and the Industrial Commission loses any legal authority to adjust it.

In her defense, Phoenix argued she "was totally unaware of the laws and statutes that regulate the (workers' compensation) system" and had attempted to correct the problem with the call to SCF Arizona. Eckerstrom said her argument, in essence, was that the industrial commission, her employer and SCF Arizona had an affirmative obligation to inform her about the process.

The judge said Phoenix's admission she didn't read the notice and didn't request the hearing controls the case.

"The commission's notice correctly advised her of her rights, and the consequences of inaction," Eckerstrom wrote.

He acknowledged Phoenix said that her conversation with someone at SCF Arizona led her to conclude that the wage figure was already set and could not be changed. But Eckerstrom said Phoenix never alleged that anyone at SCF had provided her with erroneous or misleading information.

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