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Burns v. Industrial Commission of Arizona11/26/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
In this statutory special action, petitioner Thomas Burns, doing business as Complete Automotive Repair Service, challenges the December 2002 award of the administrative law judge (ALJ) finding that Armando Flores had suffered a permanent impairment to his right hand from an industrial accident in February 2000. Burns addresses his arguments to the ALJ's June 2001 award finding him responsible as Flores's sole employer. But because Burns did not timely seek administrative review of that award, we are unable to address his arguments. Accordingly, we affirm the December 2002 award from which the petition was filed.
Background
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the award. Rural Metro Corp. v. Indus. Comm'n, 197 Ariz. 133, 3 P.3d 1053 (App. 1999). Flores filed a workers' compensation claim for injuries he received on February 9, 2000, when a car exploded at Burns's car repair business. Because Burns was uninsured on that date, Flores's claim was reviewed by the Special Fund Division/No Insurance Section of the Industrial Commission. The Special Fund accepted Flores's claim for benefits, and Burns requested a hearing, asserting that Flores had not been his employee.
After a hearing, the ALJ issued an award in June 2001, finding that Burns had been Flores's sole employer at the time of the accident and that the injury was compensable. The ALJ awarded Flores temporary benefits until his condition became medically stationary and ordered Burns to repay the Special Fund the cost of Flores's benefits. The award, which was mailed to Burns at his business address on the date it was issued, contained the following notice:
Any party dissatisfied with these Findings and Award may file a written request for review of the same with the Administrative Law Judge Division of the Industrial Commission of Arizona within THIRTY (30) DAYS after the mailing of these Findings and Award as provided by Arizona Revised Statutes, Sections 23-942 D and 23-943 A and B. Unless such written request is made within the time provided, these Findings and Award are final.
Neither Burns nor any other party timely challenged the award.
In December 2002, the ALJ issued an award finding that Flores had sustained a scheduled, six percent permanent impairment to his right hand. After Burns requested administrative review of that award, the ALJ affirmed the award in January 2003.
Discussion
Burns raises several issues challenging the June 2001 award. He did not, however, timely seek administrative review of that award as required by A.R.S. ยง 23-942(D). That statute provides that an "award is final when entered unless within thirty days after the date on which a copy of the award is mailed to the parties, one of the parties files a request for review." Burns argues that his failure to timely seek administrative review should be excused because he "never received a copy of [the ALJ's] decision of June 18th 2001."
The certificate of service attached to that award shows that it was mailed to Burns on June 18, 2001, at his business address, the same address shown on his brief and on documents throughout the record. Because the record contains proof of service, we presume he received the award. See Thompson v. Mecey, 101 Ariz. 125, 416 P.2d 558 (1966). Moreover, Burns never raised this issue in the proceedings that led to the December 2002 award although he continued to participate in matters relating to Flores's claim.
It is well established
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