Hughes v. carrabbas/travelers ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KIRK HUGHES, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CARRABBAS ITALIAN GRILL, Respondent Employer,
TRAVELERS INDEMNITY COMPANY, Respondent Carrier.
No. 1 CA-IC 14-0029
FILED 12-18-2014
Special Action – Industrial Commission
ICA Claim No. 20121-110302
Carrier Claim No. 127-CB-C5V0286-T
The Honorable Deborah A. Nye, Administrative Law Judge
AFFIRMED
COUNSEL
Kirk L. Hughes, Phoenix
Petitioner Pro Se
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
Klein Doherty Lundmark Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.
D O W N I E, Judge:
¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) order dismissing Kirk Hughes’ request for hearing
after Carrabbas Italian Grill/Travelers Indemnity Company (collectively,
“Respondents”) denied a request to reopen his claim. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In February 2012, a Carrabbas co-worker pushing a heavy
cart struck Hughes’ heel. Hughes filed an industrial injury claim that
Travelers accepted for benefits and later closed on July 26, 2012.
¶3 Hughes filed a petition to reopen on May 20, 2013. Travelers
initially issued a June 14, 2013 notice accepting the petition, but rescinded
that notice on June 21, 2013, stating the earlier notice had been issued in
error and denying the petition to reopen. Hughes filed a request for
hearing 98 days later — on September 27, 2013.
¶4 The ICA set a hearing for January 29, 2014. Respondents
asked the Administrative Law Judge (“ALJ”) to limit the hearing to the
issue of jurisdiction, arguing Hughes’ hearing request was untimely.
Respondents also asked the ALJ to order Hughes to attend his deposition
scheduled for January 2, 2014, noting that he had missed two scheduled
independent medical examinations (“IME”).
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HUGHES v. CARRABBAS/TRAVELERS
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¶5 On December 17, 2013, the ALJ advised Hughes that his
request for hearing appeared to be untimely and directed him to advise by
December 30 whether the late filing could be excused under Arizona
Revised Statutes (“A.R.S.”) section 23-947(B). The ALJ further stated:
[Respondents’ counsel] advises that you have failed to
attend two independent medical examinations scheduled for
you on July 22 and September 13, 2013. This is to notify you
that you do have an obligation to participate in pre-hearing
discovery. I understand [Respondents’ counsel] has
scheduled a deposition for you on January 2, 2014. This is to
notify you that you are under my ORDER to attend that
deposition. Failure to attend, in light of your failure to
attend the two IMEs, will likely result in imposition of
sanctions up to and including dismissal of your Request for
Hearing.
¶6 Notwithstanding this admonition, Hughes failed to attend
his deposition, and Respondents moved to dismiss his request for hearing.
They stated Hughes had also failed to answer interrogatories or provide a
signed medical release. In response, Hughes claimed he had not
participated in discovery because he was “not aware of the request to do
so.”
¶7 The ALJ reset the hearing for March 13 and ordered Hughes
to serve answers to interrogatories and a “signed authorization of release
of information.” The ALJ further advised Hughes that, should
Respondents reschedule his deposition or IME, he must attend and that
“[f]ailure to obey any of these Orders may result in the imposition of
sanctions up to and including dismissal of your claim.”
¶8 On January 30, 2014, Respondents filed a Second Motion to
Dismiss Request for Hearing, stating Hughes failed to appear for a
January 29 deposition, answer interrogatories, or provide a medical
authorization. In response, the ALJ set a telephonic conference for
February 12 and articulated several potential grounds for dismissing
Hughes’ hearing request, directing Hughes to be prepared to discuss
those matters at the conference. The ALJ further ordered Hughes to be at
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Decision of the Court
the telephone number he provided or make other arrangements to appear.
Hughes failed to participate in the February 12 hearing.1
¶9 The ALJ dismissed Hughes’ request for hearing as untimely
and, alternatively, as a sanction under Arizona Administrative Code
(“A.A.C.”) R20-5-157. Hughes sought review of that decision, but the ALJ
affirmed it. Hughes timely appealed. We have jurisdiction pursuant to
A.R.S. § 23-951(A).
DISCUSSION
¶10 The record supports the dismissal order based on the
untimeliness of the request for hearing. Hughes was required to request a
hearing within 90 days of the June 21, 2013 notice denying his petition to
reopen. A.R.S. § 23-947(A). He did not do so. Absent a timely request, a
hearing “on any question relating to a claim shall not be granted.” Id. The
ALJ alerted Hughes to the timeliness issue, offering him a chance to
address it, and also provided specific resource information, stating:
If it was your intention to protest the June 21, 2013, Notice of
Claim Status, this is notice to you that the hearing request
was filed late.
When a hearing request is filed later than 90 days from the
Notice, it deprives the Commission of jurisdiction over your
claim, unless the late filing can be excused. See Arizona
Revised Statute (“A.R.S.”) §23-947. Please review this statute
on-line at the Commission’s website, www.ica.state.az.us,
and inform me by letter (copied to [Respondents’ counsel])
no later than December 30, 2013, whether you think your
late filing can be excused under the statute. If there is no
basis to excuse the late filing, I must dismiss your Request
for Hearing for lack of jurisdiction. If this raises questions
for you, contact the Commission’s Ombudsman at 602 542-
4538.
1 The ALJ’s order states she “was unable to reach [Hughes] on five
attempts made over 15 minutes . . . . [Hughes’] telephone provided no
opportunity to leave a voice mail message. Nor did [Hughes] contact the
ALJ’s office when he failed to hear from the ALJ at the time and date
designated for the conference.”
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Hughes offered no response to the timeliness issue before the dismissal of
his hearing request.2
¶11 The record also supports the dismissal order as a sanction.
A.A.C. R20-5-157(A) authorizes the imposition of sanctions, including
dismissal, against a party who “fails to comply with an order of the
presiding administrative law judge.” When considering the sanction of
dismissal, the ALJ must assess whether a pattern of failure to cooperate
exists, whether the parties acted with due diligence during the
proceedings, whether there is evidence of record to support the claimant’s
case, and whether the employer or carrier suffered prejudice as a result of
the claimant’s conduct. Brown v. Indus. Comm’n, 154 Ariz. 252, 254, 741
P.2d 1230, 1232 (App. 1987). We will not overturn an ALJ’s sanctions
order “absent a showing of abuse of discretion.” King v. Indus. Comm’n,
160 Ariz. 161, 163, 771 P.2d 891, 893 (App. 1989).
¶12 The ALJ made the appropriate findings here, and they are
supported by the record. She found that Hughes had demonstrated a
pattern of failure to cooperate, failed to obey multiple orders, and caused
undue prejudice to Respondents. She also found Hughes “failed to act
with due diligence” and that, although he had offered some evidence to
support his claim, it was “insufficient to establish reopening.”
¶13 We find no abuse of discretion. Hughes was on notice of
potential sanctions based on his conduct during the proceedings. The ALJ
offered him numerous opportunities to cooperate and comply, explaining
exactly what he was required to do. Hughes nonetheless failed to attend
scheduled depositions and IMEs and provided “incomplete and
purposely evasive” answers to interrogatories. He also failed to
participate in a hearing set for the express purpose of permitting him to
explain his noncompliance. It is clear from the ALJ’s findings that she
considered the relevant factors and applied the correct law in determining
the appropriateness of dismissal.
2 Hughes responded to the timeliness issue for the first time in his
request for review of the dismissal order. He argued he never received
the notice denying his claim because it was sent to an old address.
However, the June 21 notice was sent to the same address Hughes used as
his address of record throughout the proceedings. Moreover, this
argument was not timely presented and preserved.
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CONCLUSION
¶14 We affirm the dismissal of Hughes’ request for hearing.
:gsh
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