Beating the Clock: Understanding the Exceptions to the Strict 90-Day Protest Rule in Arizona Workers' Comp

In Arizona workers’ compensation law, few deadlines are as critical as the period you have to protest a denied claim. When an insurance carrier or self-insured employer issues a Notice of Claim Status (NCS) denying a claim, the claimant generally has a strict 90-day protest period to file a request for a hearing with the Industrial Commission of Arizona (ICA).

If this deadline is missed, the determination typically becomes final and res judicata, meaning the issue cannot be relitigated.

However, the law recognizes specific exceptions that can either excuse a late filing or negate the validity of the notice altogether. Understanding these potential avenues for relief is crucial. These exceptions generally fall into two categories: statutory excuses for late filing and judicial doctrines that render the notice void.

I. Statutory Exceptions Excusing Late Filing

Arizona Revised Statutes (A.R.S. § 23-947(B)) mandate that the ICA or a court shall not excuse a late filing unless one of the following limited exceptions applies:

1. Justifiable Reliance on a Material Representation

A late filing can be excused if the individual to whom the notice was sent failed to request a hearing because of justifiable reliance on a material representation made by the commission, the employer, or the carrier.

• The Key Requirement: "Justifiable reliance" is narrowly defined, requiring that the person receiving the notice made reasonably diligent efforts to verify the representation.

  
  

2. Insanity, Incompetence, or Incapacity

The late filing period may be excused if the person to whom the notice was sent was suffering from insanity, legal incompetence, or incapacity, including minority, at the time the notice was mailed.

• Suspension of Time: If the incapacity starts after the one-year period for filing the initial claim begins, the running of the remainder of that period is suspended during the incapacity.

  
  

3. Notice Not Received

A late filing is excused if the person to whom the notice was sent proves by clear and convincing evidence that the notice was not received.

II. Judicial Doctrines Rendering the Notice Void

If the notice itself is deemed void (as opposed to merely containing an error), it never gains finality. A void determination carries no res judicata effect and can be attacked regardless of how much time has passed since the 90-day period expired.

Here are the key judicial principles that can void a Notice of Claim Status:

The Roseberry Doctrine: Direct Contradiction of Evidence

A notice may be void if it directly contradicts the medical report upon which it is presumably based. This means the notice and the supporting evidence are fundamentally inconsistent.

Examples where this doctrine applies include:

• Closing a claim when the medical report clearly indicates the claimant will only be stationary at a future date (e.g., six months later).

• Closing a claim without permanent impairment when medical reports in the file indicate impairment will exist.

  
  

Failure to Mail to Last Known Address

The 90-day protest period only begins once the carrier properly complies with the statutory obligation (A.R.S. § 23-1061(F)) to mail the Notice of Claim Status to the claimant’s last known address. Failure to do so means the clock for protest never starts running.

Ambiguous Notice

A late request for hearing may be excused if the denial was caused by an ambiguous Notice of Claim Status (Form 104), such as one that simultaneously accepts and closes the claim.

Lack of Statutory Authority

A determination is considered void if the carrier or commission lacked the statutory authority to issue the determination in the first place. This differs from merely making an error while having the proper authority.