Payanv.Indus. Comm'n

ARIZONA COURT OF APPEALS DIVISION ONEJun 11, 2019
No. 1 CA-IC 18-0071 (Ariz. Ct. App. Jun. 11, 2019)

No. 1 CA-IC 18-0071

06-11-2019

GRACIELA PAYAN, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, HES, INC., Respondent Employer TRAVELERS INDEMNITY COMPANY, Respondent Carrier.

COUNSEL Graciela Payan, Tolleson Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent ICA Lundmark Barberich LaMont & Slavin PC, Phoenix By R. Todd Lundmark, Danielle S. Vukonich Counsel for Respondent Employer and Respondent Carrier


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Special Action - Industrial Commission
ICA Claim No. 20172-840364
Carrier Claim No. 127-CB-E6D4408-T
The Honorable Paula R. Eaton, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Graciela Payan, Tolleson
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent ICA

Lundmark Barberich LaMont & Slavin PC, Phoenix
By R. Todd Lundmark, Danielle S. Vukonich
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

CATTANI, Judge:

¶1 Graciela Payan seeks review of an Industrial Commission of Arizona award and decision upon review dismissing her workers' compensation claim. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Payan worked at Hanchett Entry Systems ("HES") where her job as an assembler required her to stand for 9-10 hours a day and lift boxes. In October 2017, Payan filed a workers' compensation claim stating that, beginning in June 2017, these job requirements caused her significant leg pain. HES's carrier denied the claim. Payan then filed a request for hearing to challenge the denial, acknowledging "that [she] was already sick" before the alleged industrial injury but alluding to her supervisor ignoring doctors' notes for light duty.

¶3 A hearing was scheduled for April 13, 2018. On April 7, Payan filed a request for continuance stating that she was not ready for the hearing. On April 10, the administrative law judge ("ALJ") denied the continuance. Payan did not appear at the April 13 hearing, and the ALJ entered an award dismissing the case based on Payan's unexcused absence. Over two and a half months after that award issued, Payan filed a request for review. The ALJ affirmed the award upon review, noting that Payan's request for review was untimely, which precluded administrative review. See Ariz. Rev. Stat. ("A.R.S.") § 23-942(D).

¶4 This statutory special action followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10 of the Arizona Rules of Procedure for Special Actions.

DISCUSSION

¶5 A workers' compensation claimant is required to appear personally at any hearing unless excused by the ALJ. Ariz. Admin. Code ("A.A.C.") R20-5-149(A). If the claimant fails to appear, the ALJ may impose sanctions including dismissal of the claimant's request for a hearing, although the ALJ retains discretion to lift the sanction if the claimant shows good cause for the violation. A.A.C. R20-5-157(A)(1), (B). In determining whether dismissal is warranted, the ALJ may consider the claimant's explanation for her absence as well as other relevant factors including: (1) whether the claimant showed a pattern of failure to cooperate, (2) whether the claimant acted with due diligence, (3) whether any evidence supported the claimant's case, and (4) whether the employer or carrier was prejudiced. See Brown v. Indus. Comm'n, 154 Ariz. 252, 254 (App. 1987). On review, we defer to the ALJ's factual findings but consider de novo any issues of law. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003).

¶6 Here, Payan failed to attend the hearing without being excused by the ALJ. And the record does not show any justification for her absence or any evidence to support her claim of a work-related injury. Payan's request for a continuance simply stated that she was not ready. Payan did not cite a scheduling conflict or any other reason she could not attend the hearing, and she did not offer any reason for not attending to at least present her own testimony and any medical evidence she had obtained. On this record, Payan has not shown that the ALJ's election of dismissal as the appropriate sanction amounted to an abuse of discretion. See A.A.C. R20-5-157(B); see also Brown, 154 Ariz. at 254.

¶7 Additionally, Payan did not timely request administrative review of the ALJ's April 17, 2018 award (waiting more than two and a half months to do so), and the ALJ properly rejected the request for review on that basis. See A.R.S. § 23-942(D) (designating the award as "final" unless a request for review under is filed within 30 days). Thus, Payan has not established error warranting relief.

CONCLUSION

¶8 For the foregoing reasons, we affirm the award.