Chacon v. Flowers Ace Ins

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SILVESTRE CHACON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
FLOWERS FOODS, Respondent Employer,
ACE AMERICAN INSURANCE CO, Respondent Insurance Carrier.
No. 1 CA-IC 22-0024
FILED 1-12-2023
Special Action - Industrial Commission
ICA Claim No. 20210390725
Carrier Claim No. 20N59J517509
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Silvestre Chacon, Maricopa
Petitioner
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark Barberich La Mont & Slavin PC, Phoenix
By Kirk A. Barberich
Counsel for Respondent Employer and Insurance Carrier
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 The Industrial Commission of Arizona (“ICA”) dismissed
Silvestre Chacon’s claim on his failure to appear at a hearing and failure to
timely request administrative review. Because the record supports the
dismissal, we affirm.
¶2 Chacon, who works as a baker for Flower Foods, filed a claim
for workers’ compensation that was denied by the insurance carrier. He
timely requested a hearing before an ICA administrative law judge (“ALJ”).
The ICA set the hearing for December 14, 2021, but Chacon failed to appear
and the ALJ dismissed his claim as abandoned.
¶3 A week later, the ALJ issued an award confirming the
dismissal and informing the parties that if either of them was dissatisfied
with the decision they must file a written request for administrative review
within 30 days. On February 7, 2022, more than 30 days later, Chacon filed
a request for review, stating that he was not present at the hearing because
he was “overly exhausted” from work, causing him to “sleep[] in” past the
hearing start time. The ALJ reconsidered the record and affirmed the award
because Chacon’s request for review was untimely and his failure to appear
at the December 14 hearing was without good cause. Chacon then
requested review by this court.
¶4 An ICA award is final unless one of the parties files a request
for review within 30 days of service. A.R.S. § 23-942(D). When a claimant
seeks relief from a finding that the claimant’s request for review was
untimely, the ALJ must consider several factors, including whether a
meritorious reason exists for the untimely filing. Janis v. Indus. Comm’n, 111
Ariz. 362, 363 (1974); United Asphalt of Ariz. v. Indus. Comm’n, 141 Ariz. 209,
211 (App. 1984).
2
CHACON v. FLOWERS/ACE INS
Decision of the Court
¶5 Here, the record does not reveal any reason why Chacon filed
his review request late, so he failed to establish good cause for the late filing.
Even in his appellate briefing, he has not explained why he failed to meet
the 30-day deadline. The record shows he was informed of the deadline, so
he knew of its importance. Moreover, his reason for failing to appear at the
hearing does not constitute good cause. We therefore affirm the ICA award
dismissing Chacon’s claim.
AMY M. WOOD • Clerk of the Court
FILED: AA
3