Could Worker who Filed 8 Days Late get Hearing to Keep Benefits off Chopping Block?

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In Arizona, an employer can generally convince a hearing officer to dismiss an employee’s hearing request if the request is untimely. This is the case even when the employer is seeking to terminate the employee's workers’ compensation benefits. 

A case involving an employee for a staffing company illustrates how that rule works, and what it takes for an employee to establish that an exception applies. The employee slipped and fell at work in 2022 and injured himself. Believing that the injuries had resolved, the employer sought to terminate benefits in May 2023. 

On June 1, 2023, the company mailed the employee a notice terminating benefits. On September 7, 2023, 98 days after the employer mailed the notice, the employee requested a hearing challenging the termination. The employer argued the request should be dismissed because it was untimely.

An ALJ held a hearing on whether the hearing request was untimely. At the hearing, the employee said:

• He wasn’t sure when he received the notice
• He relocated twice within his apartment complex in the summer of 2023. 
• The notice was mailed to his first apartment number. 

The employee also said he didn’t tell the Industrial Commission of his new apartment number during the 90-day period.

The ALJ dismissed the employee’s hearing request and the employee challenged that decision in court.

The court explained that, in Arizona, a claimant has 90 days to request a hearing after the employer (or carrier) sends notice. The notice becomes final if a claimant does not timely request a hearing.

To be excused from this deadline, a claimant must exercise reasonable care and diligence so they would likely learn of a notice during the 90 days.

Could the employee challenge the termination of his benefits?

A. Yes. It probably was that fact that he moved that caused him to miss the notice and wait too long to request a hearing. As a matter of fairness, he should be allowed to have a hearing, especially because his benefits were hanging inti the balance.

B. No. He didn’t really try to apprise the Commission of his new address or make any other efforts to ensure he received the notice.

If you selected B, you agreed with the court in Mitchell v. Industrial Comm’n of Arizona, No. 1 CA-IC 24-0012 (Ariz. Ct. App. 12/31/24, unpublished), which held that the ALJ was right to dismiss the employee’s hearing request.

The court noted that an employee’s late request could be excused only if he acted diligently. And even a diligent claimant's late filing is excused only if that claimant:

1. Justifiably relied on a statement from the employer, carrier, or ICA; 
2. Suffered from insanity or legal incompetence or incapacity, including being underage, at the time the notice was issued; or 
3. Proved by clear and convincing evidence they did not receive the notice.

Here, there was no evidence that he acted diligently. He even acknowledged failing to tell the Commission about his new address, though he apparently changed units just before the notice was sent to him. Nor did he establish any of three options above. He only said that he was not certain when the notice arrived.

Accordingly, the ALJ did not err in dismissing his hearing request.

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