Wilson v. Allied Xl

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERICA WILSON, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ALLIED UNIVERSAL, Respondent Employer,
XL INSURANCE AMERICA, Respondent Insurance Carrier.
No. 1 CA-IC 22-0018
FILED 12-13-2022
Special Action - Industrial Commission
ICA Claim No. 20210960433
Carrier Claim No. 1D68 780 501712 2
The Honorable Amy L. Foster, Administrative Law Judge
AWARD AFFIRMED
APPEARANCES
Erica Wilson, Mesa
Petitioner Employee
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 Erica Wilson challenges the denial of her Industrial
Commission of Arizona (“ICA”) award finding that she filed an untimely
claim for workers’ compensation benefits. For reasons that follow, we
affirm the award.
¶2 In September 2019, Wilson fell in a parking lot while working
as a security guard for Allied Universal (“Allied”). In August 2020, she filed
a workers’ compensation claim with the ICA, but incorrectly stated her
injury occurred in November 2019. Allied’s carrier denied the claim, and
Wilson did not file a protest.
¶3 In April 2021, Wilson filed a “new” claim for the same injury,
but this time she listed the correct date of injury. That claim was also
denied. Wilson timely protested that denial, and an evidentiary hearing
was set. Allied affirmatively asserted that Wilson had not filed a timely
claim for a September 2019 injury.
¶4 After an evidentiary hearing, the Administrative Law Judge
(“ALJ”) issued an award denying Wilson’s claim. The ALJ found that
Wilson filed a timely claim in August 2020 with an incorrect date of injury,
but the denial became final when Wilson did not file a protest. The ALJ
then determined that Wilson’s April 2021 claim was untimely because it
exceeded the one-year time limit. Wilson timely requested administrative
review, and the award was affirmed. Wilson then sought review by this
court. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2) and 23-951(A).
¶5 In reviewing an ICA award, we defer to the ALJ’s factual
findings but review questions of law de novo. Young v. Indus. Comm’n, 204
Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in a light most
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WILSON v. ALLIED/XL
Decision of the Court
favorable to upholding the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102,
105, ¶ 16 (App. 2002).
¶6 An injured worker must file a claim “within one year after the
injury occurred or the right thereto accrued.” A.R.S. § 23-1061(A). An
allegation that a claim was untimely filed is an affirmative defense. Allen v.
Indus. Comm’n, 152 Ariz. 405, 412 (1987).
¶7 In her appellate briefing, Wilson does not make any
arguments addressing the timeliness of her claim. Instead, she seems to
focus on whether she sufficiently proved she was injured in September
2019, an issue that was resolved in her favor. Because Wilson has not raised
any meaningful contention that the ICA award was arbitrary or lacks
evidentiary support, we affirm. See A.R.S. § 23–951(B) (stating that
appellate review of an ICA award is limited to “determining whether the
commission acted without or in excess of its power” and whether the
findings of fact supported the ALJ’s decision).
AMY M. WOOD • Clerk of the Court
FILED: AA
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