Dodson v. St. Joseph's ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DIANA DODSON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ST. JOSEPH’S HOSPITAL & MEDICAL CENTER, Respondent Employer,
DIGNITY HEALTH/SEDGWICK, Respondent Carrier.
No. 1 CA-IC 14-0087
FILED 12-17-2015
Special Action - Industrial Commission
ICA Claim No. 20140-690358
Carrier Claim No. 201485138
Anthony F. Halas, Administrative Law Judge
AFFIRMED
COUNSEL
Jack Levine, P.C., Phoenix
By Jack Levine
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
DODSON v. ST. JOSEPH’S
Decision of the Court
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.
T H U M M A, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review by an administrative law
judge (ALJ) dismissing a request for hearing. Claimant Diana Dodson
alleges the dismissal was an abuse of discretion and an improper
consequence for her failure to appear and provide any evidence supporting
her claim. Because Dodson has shown no error, the award is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Dodson claims she sustained a mental injury on December 1,
2008 while employed by respondent employer St. Joseph’s Hospital &
Medical Center. Dodson’s workers’ compensation claim, filed in 2014, was
denied by the respondent carrier Dignity Health/Sedgwick. Dodson timely
challenged that denial, and in mid-June 2014, the ALJ set a hearing for
September 25, 2014. Dodson was self-represented during much of the time
the matter was pending with the ICA. At Dignity’s request, the ALJ reset
the hearing to September 24, 2014 (the day before the original September 25
2014 setting) in a written notice dated June 24, 2014 that was timely served
on Dodson.
¶3 Dodson and Dignity then listed witnesses and undertook
various other prehearing activities. Although Dignity filed its records into
evidence as required, Dodson did not. See Arizona Administrative Code
(A.A.C.) R20-5-155 (2015).1 Dignity raised affirmative defenses challenging
the timeliness of Dodson’s claim. See Ariz. Rev. Stat. (A.R.S.) § 23-1061 (one
year limitations period for workers’ compensation claims); A.R.S. § 23-908
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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DODSON v. ST. JOSEPH’S
Decision of the Court
(claimant must “forthwith report the accident and the injury resulting
therefrom to the employer”). In a detailed July 18, 2014 letter to Dodson, the
ALJ reminded Dodson of, among other things, the September 24, 2014
hearing date, the affirmative defenses raised by Dignity and that Dodson
had the burden of presenting evidence to show her claim was timely and
referenced resources that Dodson could access to better understand the
hearing process.
¶4 Dodson failed to appear for the September 24, 2014 hearing.
At that hearing, the ALJ granted Dignity’s motion to dismiss. In a written
decision entered that same day, the ALJ noted Dodson failed to appear at
the properly-noticed hearing, did not provide any explanation or good
cause for that failure and, accordingly, found Dodson abandoned her
hearing request and dismissed that request. The next day (September 25,
2014), Dodson had an attorney file a notice of appearance on her behalf and
timely requested administrative review, stating Dodson’s counsel:
was not representing [Dodson] at the time the
hearing date in this matter was rescheduled and
was not advised, nor did he notice the change of
date of the hearing when he reviewed
[Dodson’s] file after agreeing to represent her.
After considering the request and reconsidering the “file, records and all
matters hereunto appertaining,” the ALJ affirmed the award. This court has
jurisdiction over Dodson’s timely request for review pursuant to A.R.S. §§
12-120.21(A)(2), 23-951(A), and Arizona Rules of Procedure for Special
Actions 10.
DISCUSSION
¶5 Workers’ compensation proceedings are conducted so as to
“achieve substantial justice.” A.R.S. § 23-941(F). A claimant must personally
appear at ICA hearings, unless excused from doing so by the ALJ. See
A.A.C. R20-5-149.A. If a party fails to comply with applicable rules or
orders, the ALJ has the discretion to, among other things, dismiss a request
for hearing or preclude the introduction of evidence. See A.A.C. R20-5-
157.A. Although a party may be relieved of such consequences for good
cause shown, A.A.C. R20-5-157.B, this court will affirm consequences
imposed by an ALJ absent an abuse of discretion, see Nolden v. Industrial
Commission, 127 Ariz. 501, 503-04 (App. 1980).
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DODSON v. ST. JOSEPH’S
Decision of the Court
¶6 As the ALJ recognized, deciding that Dodson abandoned her
request for hearing required the examination of various factors, including
whether: (1) there was a pattern of failing to cooperate; (2) Dodson acted
with due diligence; (3) evidence has been presented to support Dodson’s
case; (4) the explanation for the failure to comply is reasonable; (5) the
opposing party has suffered prejudice; and (6) the failure to comply
imposes an unwarranted administrative burden. See Brown v. Indus.
Comm’n, 154 Ariz. 252, 254 (App. 1987); King v. Indus. Comm’n, 160 Ariz. 161,
163 (App. 1989). As applied, the ALJ found:
I have weighed the factors that are relevant and
material [including the Brown factors], and I
determine and conclude that applicant
Dodson’s unexcused failure to attend the
hearing and provide testimony, or to provide
any other evidence in support of her Request for
Hearing, or to provide any evidence in
opposition to the affirmative defenses raised . . .
, evidences an abandonment of her Request for
Hearing.
The ALJ also found Dodson did not show good cause sufficient to relieve
her of that consequence.
¶7 The record shows Dodson failed to provide evidence to
support her industrial injury claim or to refute the affirmative defenses
raised by Dignity, notwithstanding the requirement that she do so.
Dodson’s failures also could support a conclusion that she did not act with
due diligence, and she did not provide any reason for her failures. By
contrast, Dignity timely filed evidence (the only evidence presented to the
ALJ), consisting of Dodson’s employment and medical records. Although
Dodson claims she sustained a mental injury on December 1, 2008, the
records filed by Dignity show significant mental health issues beginning in
2005. Dodson’s employment records document repeated difficulties with
her job performance as a dental assistant and two requests in 2007 for leave
under the Family Medical Leave Act (FMLA). The documents also indicate
Dodson resigned from her employment on January 2, 2008 – nearly a year
before the alleged industrial injury – stating “I … will not return to work
from my FMLA due to Dr. advisement.” Dodson also waited more than six
years after her employment ended to file her claim, long after the one-year
limitations period. This delay undoubtedly would prejudice the ability to
investigate her claim. Finally, although Dodson’s failures may not have
imposed an unwarranted administrative burden, requiring that another
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DODSON v. ST. JOSEPH’S
Decision of the Court
hearing be set may have done so, particularly given the evidentiary and
procedural flaws in her claim. For all of these reasons, Dodson has not
shown that the ALJ abused his discretion by finding that she had
abandoned her request for hearing.
CONCLUSION
¶8 Because Dodson has shown no error, the award is affirmed.
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