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
ig
if
'■ 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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J, ^
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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.)
ru[ 1
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
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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
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Other:
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O 550 Civil Rights
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Confinement
□ 625 Drug Related Seizure
of Property 21 USC 881
G 690 Other
LABOR
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Act
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Relations
G 740 Railway Labor Act
G 751 Family and Medical
Leave Act
G 790 Other Labor Litigation
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Income Security Act
• BANKRUPTCY
□ 422 Appeal 28 USC 158
D 423 Withdrawal
28 USC 157
f PROPERTY RIGHTS
G 820 Copyrights
O 830 Patent
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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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