Petition for Writ of Certiorari — Tanya Winters, Petitioner v. Industrial Commission of Arizona, et al.

Supreme Court briefDec 12, 2019

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Umpreme Court

STATE OF ARIZONA

ROBERT BRUTINEL

Chief Justice

JANET JOHNSON

Clerk of the Court

ARIZONA STATE COURTS BUILDING

1501 WEST WASHINGTON STREET, SUITE 402

PHOENIX, ARIZONA 85007

TELEPHONE: (602) 452-3396

November 14, 2019

RE:

TANYA WINTERS v ICA/FNF/ZURICH

Arizona Supreme Court No. CV-19-0157-PR

Court of Appeals, Division One No. 1 CA-IC 19-0010

Industrial Commission of Arizona No. 98155-295758

Insurance Carrier No. 2620028906

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GREETINGS

The following action was taken by the Supreme Court of the State

of Arizona on November 14 2019 in regard to the abovereferenced cause:

ORDERED: Plaintiff's Motion for Summary Judgment

FURTHER ORDERED: Motion for Summary Judgment

= DENIED.

= DENIED.

FURTHER ORDERED: Motion for Summary Judgment or Partial Judgment

= DENIED.

FURTHER ORDERED: Petition for Special Action (Treated as Motion)

= DENIED.

FURTHER ORDERED: Motion and Memorandum Supporting Motion for

Summary or Partial Judgment = DENIED.

FURTHER ORDERED: (Second) Petition for Special Action (Treated

as Motion) = DENIED.

/

RECEIVED

JAN 2 0 2020

United States Court of Appeals

For The Federal Circuit

Arizona Supreme Court No. CV-19-0157-PR

Page 2 of 2

FURTHER ORDERED: (Second) Motion for Summary Judgment or Partial

Judgment = DENIED.

FURTHER ORDERED: (Second) Motion and Memorandum Supporting

Motion for Summary or Partial Judgment = DENIED.

FURTHER ORDERED:

= DENIED.

(Third) Motion for Summary or Partial Judgment

FURTHER ORDERED: (Third) Motion and Memorandum Supporting Motion

for Summary or Partial Judgment) = DENIED.

FURTHER ORDERED: (Third) Petition Special Action (Treated as

Motion) = DENIED.

FURTHER ORDERED: Petition for Review = DENIED.

A panel composed of Vice Chief Justice Timmer, Justice Gould,

Justice Beene and Justice Montgomery participated in the

determination of this matter.

Janet Johnson, Clerk

TO:

Tanya Winters

Gaetano J Testini

Rachel Parise Brozina

Amy M Wood

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'■ is*

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

TANYA WINTERS,

Petitioner Employee, )

DIVISION ONE

FILED: 4/9/19

AMY M. WOOD,

CLERK

Court of Appeals BY: RB

Division One

No. 1 CA-IC 19-0010

)

)

)

v.

THE INDUSTRIAL COMMISSION OF

ARIZONA,

)

FNF CONSTRUCTION,

)

)

)

Respondent, )

ICA Claim

No. 98155-295758

Carrier Claim

No. 2620028906

Respondent Employer, )

ZURICH AMERICAN INSURANCE

COMPANY,

)

)

)

Respondent Carrier. )

)

ORDER DISMISSING SPECIAL ACTION

The court has considered petitioner employee's Petition for Special

Action - Industrial Commission, filed in this court on March 4, 2019.

This court's review of.an ICA award is commenced by the filing of

a Petition for Special Action - Industrial Commission with the clerk of

this court.

See Rule 10, R.P.S.A.

The petition for special action must

be filed within 30 days after the administrative law judge's decision upon

review is mailed to the parties.

A.R.S. § 23-943(H).

of the petition for special action is jurisdictional.

The timely filing

Hall v.

Indus.

Comm' n, 106 Ariz. 221, 223 (1970), overruled on other grounds, Watts v.

Indus. Conun'n, 180 Ariz. 512, 514 (1994)

(treating failure to pay filing

fees as non-jurisdictional defect).

In this case, the decision upon review was mailed to the parties on

November 1, 2016.

A petition for special action therefore had to be filed

by December 1, 2016.

The petition for special action was filed with this

court on March 4, 2019.

For that reason, claimant's petition for special

action was untimely and this court lacks jurisdiction to review the merits

of the special action.

Therefore,

IT IS ORDERED dismissing the special action and quashing the writ

of review.

______________ / s /______________________________

Barbara Vidal Vaught, Judge Pro Tempore

A copy of the foregoing

was sent to:

Tanya Winters (mailed)

Gaetano J Testini

Rachel Parise Brozina

Hon Paula R Eaton

'■-,1

LAW OFFICES

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LONG, LUNDMARK & POPPE P.A.

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POST OFFICE BOX 33997

PHOENIX, ARIZONA 85067-3997

(602) 279-9777

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Melinda K. Poppe

Bar No: 011554

Defendants Employer

and Carrier

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CP

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BEFORE THE INDUSTRIAL COMMISSION OF ARIZONA

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TANYA WINTERS,

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Applicant,

ICA CLAIM NO.:

9563

CARRIER CLAIM NO.: 763-905957

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vs.

DATE OF INJURY: 06/01/98

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FNF CONSTRUCTION,

STIPULATION

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Defendant Employer,

(Assigned to the Honorable Layna Taylor)

CRAWFORD & COMPANY,

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Defendant Insurance

Carrier.

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Pursuant to A.A.C. R20-5-152, the parties hereby stipulate as follows:

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1. The applicant’s June 1, 1998 industrial injury was medically stationary effective August 24,

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1999 with a 5% right lower extremity scheduled permanent partial disability which was properly

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calculated based upon 50% of the applicant’s average monthly wage.

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2.

The applicant is entitled to the remainder of any supportive care as authorized by the

defendants in their September 23, 1999 supportive medical care award which included two office visits

for one year and medications prescribed by Dr. Brad Bruns. This award will terminate effective August

3, 2000.

3.

The applicant has received all medical, temporary and permanent partial disability benefits

to which she was entitled through the closure of her June 1, 1998 claim effective August 24, 1999.

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4.

The defendants’ rights pursuant to A.R.S. §23-1023 shall apply to all third-party;.^laiifiS or

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actions related to the applicant’s June 1, 1998 industrial injury.

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The parties respectfully request that the above stipulations be approved by the presiding:

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Administrative Law Judge.

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RESPECTFULLY SUBMITTED this

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A pn i *-

day of-Mafeh, 2000.

LONG, LUNDMARK & POPPE, P.A.

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By vua

Melinda K. Poppe

100 West Clarendon

Suite 2180

Phoenix, Arizona 8503 3

Attorneys for Defendants

Employer and Carrier

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TAYLOR & ASSOCIATES

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By:

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Brian A'Weekley

814 W. Roosevelt

Phoenix, Arizona 85007

Attorneys for Applicant

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ORIGINAL of the foregoing

DELIVERED this

day of

►, 2000, to:

The Hon. Layna Taylor

Administrative Law Judge

Industrial Commission of Arizona

800 West Washington Street

Phoenix, Arizona 85007

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C/.//////?

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2

7

D

0

iOy BEFORE THE INDUSTRIAL COMMISSION OF ARIZONA

/

TANYA WINTERS,

Applicant,

ICA Claim Ncf. 98155295758

3

Social Security #

Ins. Claim No. 557-62227-CS

Date of Injury: 06/01/1998

vs.

FNF CONSTRUCTION,

Defendant Employer,

FINDINGS AND AWARD APPROVING

STIPULATION

MARYLAND CASUALTY CO c/o CRAWFORD

&CO,

Defendant Insurance Carrier.

On June 1, 1998, the applicant sustained an industrial injury. The claim was

accepted for benefits. On September 23, 1999, the carrier issued a Notice of Claim Status

closing the applicant’s claim effective August 24, 1999, with a permanent disability. The

applicant filed a timely Request for Hearing and a formal hearing was initially scheduled to be

held on January 18, 2000, in Phoenix, Arizona. In lieu of proceeding with formal hearing, the

parties filed a stipulation and requested approval of same. The applicant is represented by

Brian Weekley. The defendants are represented by Melinda Poppe.

The undersigned, having fully considered the file, records and all related matters,

now enters her Findings and Award as follows:

FINDINGS

1. On June 1, 1998, the applicant sustained an industrial injury. The claim was

accepted for benefits. On September 23, 1999, the carrier issued a Notice of Claim Status

closing the applicant’s claim effective August 24, 1999, with a permanent disability. The

applicant filed a timely Request for Hearing and a formal hearing was initially scheduled to be

TANYA WINTERS

held on January 18, 2000, in Phoenix, Arizona. In lieu of proceeding with formal hearing, the

parties filed a stipulation on April 7, 2000, wherein the parties stipulated to the following facts

to form the basis of this Award.

2. The parties stipulated, and it is found, that the applicant’s condition was

medically stationary with a five percent scheduled right lower extremity permanent partial

disability which was properly compensated based upon fifty percent of the applicant’s average

monthly wage. The parties further stipulate that the applicant is entitled to any remaining

supportive care authorized in the September 23, 1999, supportive medical award which

included two medical office visits and medications prescribed by Dr. Bruns, and that she has

received all medical and temporary and permanent partial disability benefits to which she was

entitled through the closure of her claim effective August 24, 1999.

3. The parties to a proceeding before the Industrial Commission may stipulate

orally or in writing to any facts or issues, and any such stipulation shall be considered binding

upon the parties. Arizona Administrative Code, R20-5-152.

AWARD

IT IS ORDERED approving the stipulation of the parties.

'NOTICE: Any party dissatisfied with this Award may file a written request for

review of the same with the Administrative Law Judge Division of the Industrial Commission

within THIRTY (30) DAYS after the mailing of this Award as provided by Arizona Revised

Statutes. Sec. 23-942 (D) and 23-943 (A) and (B). Unless such written request is made within

the time provided, this Award is final.

Bv

C

tL

layna Taylor

Administrative Law Judge

DATED AND MAILED IN PHOENIX, ARIZONA THIS 10TH DAY OF APRIL, 2000.

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)

(

CIVIL COVER SHEET

.IS 44 (Rev. 06/17)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or othqj]j>q|g$ ®tBS5Sr?9ctor^Bf ASfSIfefS

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the us&QffteaefkjsICq^jfQfffi?

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

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reut;rcil circuit

I. (a) PLAINTIFFS

DEFENDANTS

Tanya Winters

Industrial Commission of Arizona

O f rVV^OTN o_- F/O V~C O.CisA--i/ "Z (Jir'«ChXo s <■

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(b) County'of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

Gila

NOTE:

(c)

^ 3

U.S. Government

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an -X" in One Box for Plain,iff

and One Box for Defendant)

(For Diversity Cases Only)

PTF

DEE

PTF

DEF

Federal Question

(U.S. Government Not a Party)

Plaintiff

□ 2

I

□ 4

U.S. Government

Defendant

Diversity

(Indicate Citizenship ofParties in item Ili)

g REAL PROPERTY

G 210 Land Condemnation

G 220 Foreclosure

G 230 Rent Lease & Ejectment

G 240 Torts to Land

G 245 Tort Product Liability

G 290 All Other Real Property

PERSONAL INJURY

G 310 Airplane

G 315 Airplane Product

Liability

G 320 Assault, Libel &

Slander

G 330 Federal Employers’

Liability

G 340 Marine

G 345 Marine Product

Liability

G 350 Motor Vehicle

G 355 Motor Vehicle

Product Liability

G 360 Other Personal

Injury

G 362 Personal Injuiy Medical Malpractice

CIVIL RIGHTS %

G 440 Other Civil Rights

O 441 Voting

G 442 Employment

G 443 Housing/

Accommodations

G 445 Amer. w/Disabilities Employment

G 446 Amer. w/Disabilities Other

G 448 Education

Citizen of This State

SC 1

O

1

Incorporated or Principal Place

of Business In This State

□ 4

flU

Citizen of Another State

□ 2

□

2

Incorporated and Principal Place

of Business In Another State

□ 5

0 5

Citizen or Subject of a

Foreign Country

□ 3

□

3

Foreign Nation

0 6

0 6

Click here for: Nature of Suit Code Descriptions.

IV. NATURE OF SUIT (Place an ‘X’’ in One Box Only)

TORTS CONTRACT

□ 110 Insurance

G 120 Marine

G 130 Miller Act

G 140 Negotiable Instrument

G 150 Recovery of Overpayment

& Enforcement of Judgment

G 151 Medicare Act

G 152 Recovery of Defaulted

Student Loans

(Excludes Veterans)

G 153 Recovery of Overpayment

ofVeteran’s Benefits

G 160 Stockholders’Suits

G 190 Other Contract

G 195 Contract Product Liability

G 196 Franchise

IN LAND CONDEMNATION CASES. USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

Attorneys (IfKnown)

Attorney's (Firm Name, Address, and Telephone Number)

II. BASIS OF JURISDICTION (Placean “X" in One Box Only)

G 1

Maricopa________________

(IN U.S. PLAINTIFF CASES ONLY)

(EXCEPTIN as PLAINTIFF CASES)

^MFORFEITURE/PENALTY"^

PERSONAL INJURY

G 365 Personal Injury Product Liability

G 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

G 368 Asbestos Personal

Injury Product •

Liability

PERSONAL PROPERTY

G 370 Other Fraud

G 371 Truth in Lending

G 380 Other Personal

Property Damage

G 385 Property Damage

Product Liability

PRISONER PETITIONS

Habeas Corpus:

G 463 Alien Detainee

G 510 Motions to V acate

Sentence

G 530 General

G 535 Death Penalty

Other:

G 540 Mandamus & Other

O 550 Civil Rights

G 555 Prison Condition

G 560 Civil DetaineeConditions of

Confinement

□ 625 Drug Related Seizure

of Property 21 USC 881

G 690 Other

LABOR

G 710 Fair Labor Standards

Act

G 720 Labor/Management

Relations

G 740 Railway Labor Act

G 751 Family and Medical

Leave Act

G 790 Other Labor Litigation

G 791 Employee Retirement

Income Security Act

• BANKRUPTCY

□ 422 Appeal 28 USC 158

D 423 Withdrawal

28 USC 157

f PROPERTY RIGHTS

G 820 Copyrights

O 830 Patent

G 835 Patent - Abbreviated

New Drug Application

G 840 Trademark

SOCI AL SECURITY

O 861 HIA (1395ff)

G 862 Black Lung (923)

O 863 DIWC/DIWW (405(g))

G 864 SSID Title XVI

G 865 RSI (405(g))

FEDERAL TAX SUITS” 1

G 870 Taxes (U.S. Plaintiff

or Defendant)

O 871 IRS—Third Party

26 USC 7609

IMMIGRATION

□ 462 Naturalization Application

□ 465 Other Immigration

Actions

OTHER STATUTES":;375 False Claims Act

□ 376 Qui Tam (31 USC

3729(a))

□ 400 State Reapportionment

□ 410 Antitrust

□ 430 Banks and Banking

□ 450 Commerce

□ 460 Deportation

G 470 Racketeer Influenced and

Corrupt Organizations

□ 480 Consumer Credit

□ 490 Cable/Sat TV

□ 850 Securities/Commodities/

Exchange

□ 890 Other Statutory Actions

□ 891 Agricultural Acts

□ 893 Environmental Matters

□ 895 Freedom oflnformation

Act

G 896 Arbitration

G 899 Administrative Procedure

Act/Review or Appeal of

Agency Decision

G 950 Constitutionality of

State Statutes

V. ORIGIN (Place an “X" in One Box Only)

□ 1

Original

Proceeding

□ 2 Removed from

State Court

□ 3

□ 4 Reinstated or

Reopened

Remanded from

Appellate Court

O 5 Transferred from

Another District

(specify)

□ 6 Multidistrict

Litigation Transfer

□ 8 Multidistrict

Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

SSR 73-7c: SECTION 223(d) - (42 U.S.C. 443(d)L

VI. CAUSE OF ACTION Brief description of cause:

LeLciiS c-\y\ Ai

VII. REQUESTED IN

S CHECK IF THIS IS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

COMPLAINT:

VIII. RELATED CASE(S)

(See instructions):

IF ANY

JUDGE

im i'O’

CHECPC YES only*if demanded in complaint:

JURY DEMAND:

M Yes

71 No

DEMAND S

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

DATE

FOR OFFICE USE ONLY

RECEIPT#

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

4

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