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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

EDGAR FAUSTINO, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

KEITH & SHARMA MULQUEEN, Respondent Employers,

SPECIAL FUND DIVISION/NO INSURANCE SECTION,

Respondent Party in Interest.

No. 1 CA-IC 16-0071

Special Action - Industrial Commission

ICA Claim No. 20161-270265

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 Industrial Commission of Arizona
2

Welsh Law Group, PLC, Phoenix

By Kenneth W. Welsh, Jr., Keely Verstegen

Counsel 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-Employee 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 (“ALJ”), 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, Faustino mailed a Worker’s Report of Injury 

to the ICA, alleging he had sustained an industrial injury while working for 

Respondent Employers Keith and Sharma Mulqueen on March 7, 2014. The 

claim was denied, and Faustino requested a hearing, which was set for 

September 16, 2016. Faustino did not appear at the hearing or notify the 

ALJ or the other parties that he would not appear.

¶4 The ALJ’s award found the claim non-compensable 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. 

Considering the letter a request for review, the ALJ issued a decision upon 

review 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 in 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 properly concluded Faustino’s claim is timebarred. Based on his injury report, Faustino was working for the 

Respondent Employers on March 7, 2014, when he slipped on a truss, 

cracked seven ribs, immediately stopped working, 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 that [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 one year after the injury—or by March 6, 2015. Because 

Faustino did not 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 elements 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 show 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 decision upon review, the ALJ found
FAUSTINO 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 

ALJ’s findings are fully supported by the administrative 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 Respondents 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.