NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

EDGAR FAUSTINO
, Petitioner
,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent
,
KEITH & SHARMA MULQUEEN
, Respondent Employer s ,
SPECIAL FUND DIVISION/NO INSURANCE SECTION
,

Respondent Party in Interest

.
N o . 1 CA

- IC 16

- 00 71

Special Action

- Industrial Commission ICA Claim No. 201 6 1

- 270265 Carrier Claim No. NONE C. Andrew Campbell , Administrative Law Judge

AWARD AFFIRMED

COUNSEL
Edgar Faustino , Phoenix Petitioner

Industrial Commission of Arizona, Phoenix By Jason M. Porter Counsel for Respondent I ndustrial C ommission of A rizona2

Welsh Law Group, PLC, Phoenix By Kenneth W. Welsh, Jr., Keely Verstegen C ounsel for Respondent Employers

ICA Special Fund Division/No Insurance Section, Phoenix By Afshan Peimani Counsel for Respondent Party in Interest

MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.

W I N T H R O P , Judge:

¶1 This is a special action review of an Industrial Commission of Arizona (“ICA”) award and decision upon review finding the claim of Petitioner

- E mployee Edgar Faustino barred by the statute of limitations and non

- compensable

. For the following reasons , we affirm.

STANDARD OF REVIEW

¶2 In reviewing findings and awards of the ICA, we defer to the factual findings of the administrative law judge (“A LJ ”), but review questions of law de novo

. Young v. Indus. Comm’ n , 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in the light most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’ n , 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

PROCEDURAL AND FACTUAL HISTORY

¶3 On May 3, 2016, Faustin o mailed a Worker’ s Rep ort of Injury
to the ICA, alleging he had sustained an industrial injury while working for Respondent E mployer s Keith and Sharma Mulqueen on March 7, 2014. T he claim was denied
, and Faustino request ed a hearing, which was set for Se ptember 16, 2016. Faustino did not appear at the hearing or notify the ALJ or the other parties that h e w ould not appear.

¶4 The ALJ ’s award found t he claim n on

- co m pe nsa ble because it was barred by the one

- year statute of limitations

. See Ariz

. Rev

. Stat

. (“A.R.S.”) § 23

- 1061(A) (2016)

.FAUSTINO v. MULQUEEN /SPECIAL Decision of the Court

3 ¶5 Faustino then wrote the ICA that he did not attend the hearing because he was sick, but he attached no supporting documentation. C onsider ing the letter a r equest for r eview, the ALJ issued a d ecision u pon

r eview affirming the award

. ¶6 Faustino then brought this timely petition. We have jurisdiction pursuant to A.R.S. §§ 12

- 120.21(A)(2) (2016) and 23

- 951(A) (2012), and Rule 10 of the Arizona Rules of Procedure for Special Actions.

ANALYSIS

¶7 A worker must file a claim for workers’ compensation “within one year after the injury occurred or the right thereto accrued.” A.R.S. § 23

- 1061(A). The statute of limitations “begins to run when the injury becomes manifest or when the claimant knows or i n the exercise of reasonable diligence should know that the claimant has sustained a compensable injury.” Id

. ; accord Pac

. Fruit Express v. Indus. Comm’n , 153 Ariz. 210, 213, 735 P.2d 820, 823 (1987). The claimant bears the burden of proving all material elements of the claim. T.W.M. Custom Framing v. Indus. Comm’n
, 198 Ariz. 41, 45

- 46, ¶ 12, 6 P.3d 745, 749

- 50 (App. 2000).

¶8 Here , the ALJ proper ly concluded Faustino’s claim is time

barred. Based on his injury report, Faustino was working for the R espondent E mployers on March 7, 2014, when he slipped on a truss, cracked seven ribs, immediately stopped work ing , and was treated at Scottsdale Healthcare. The ALJ did not abuse his discretion in finding “[t]here is no evidence in the record to support t hat [Faustino’s] cause of action accrued on any date other than the alleged date of injury.” Accordingly, the statute of limitations required that Faustino file his claim no later than on e year after the injury

— or by March 6, 2015. Because Faustino did n ot file his claim until May 3, 2016 , the claim is barred by the statute of limitations.

¶9 Additionally, the ALJ did not abuse his discretion in affirming the award on review without granting a new hearing. Faustino bore the burden of establishing the elemen ts of a compensable industrial injury and had the obligation to appear in person for hearings, unless excused. Before the hearing, Faustino did not file any medical documentation or request subpoenas for medical witnesses in support of his claim or to sho w that his Report of Injury was timely. Further, despite having advance notice of the September 16 , 2016 hearing, he did not appear, his attendance was unexcused, and he filed no documentation to excuse his absence or otherwise support his case. In his d ecision upon review , the ALJ foundFAUSTINO v. MULQUEEN /SPECIAL Decision of the Court

4 Faustino’s request for review did “not set forth a legal or factual basis to overturn the award” or address Faustino’s “failure to produce any evidence, or request any witnesses in advance of the initial hearing.” The AL J’s findings are fully supported by the ad ministrative record. 1

CONCLUSION

¶10 For the foregoing reasons, we affirm the award and decision upon review

. Respondents are awarded their taxable costs on appeal, subject to compliance with Rule 21, ARCAP.

1 R espondent s Employers and Special Fund Division request that we strike paragraphs 2 through 6 and the latter one

- and

- a

- half sentences in paragraph 7 of Faustino’s opening brief as asserting facts outside the administrative record

. See Cowan v. Indus. Comm’n , 18 Ariz. App. 155, 158, 500 P.2d 1143, 1146 (1972). Given that Faustino’s claim is time

- barred, we deny the requests as moot.