Opinion
No. 1 CA-IC 15-0033
03-01-2016
JUDY A. TITKO, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, JAMES MCBRIDE, Respondent Employer, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Respondent Carrier
COUNSEL Judy A. Titko, Mattoon, IL Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Lundmark Barberich La Mont & Slavin PC, Tucson By Eric W. Slavin 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
No. 20140-070246 Carrier Claim No. 127-CB-EPE9325-K
The Honorable Gary M. Israel, Administrative Law Judge
AWARD SET ASIDE
COUNSEL
Judy A. Titko, Mattoon, IL
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Lundmark Barberich La Mont & Slavin PC, Tucson
By Eric W. Slavin
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined.
GOULD, Judge:
¶1 Judy Titko ("Claimant") seeks special action review of the Industrial Commission decision denying her claim as noncompensable. Because the Administrative Law Judge ("ALJ") abused his discretion in denying Claimant's request for a continuance to obtain counsel, the award is set aside.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Claimant was employed as a live-in caregiver by James McBride. Her duties consisted of fixing meals and accompanying McBride on appointments and outings. According to Claimant, she heard McBride pass out in his walker on January 18, 2013 and she rushed to assist him. Claimant wheeled McBride to his bed and lifted him into the bed. Claimant contends this action caused her injury.
¶3 On January 25, 2013, Claimant went to her doctor complaining of pain in her back and hips. Despite taking pain medication, the pain persisted, so Claimant returned to her doctor on January 30. The doctor ordered x-rays of Claimant's spine which revealed a T12 compression fracture and multilevel lumbar degenerative disease.
¶4 Claimant filed a report of her injury on January 6, 2014; the claim was denied by McBride's insurance provider. Claimant thereafter requested a hearing. However, because Claimant and McBride spent half the year in Arizona and half the year in Illinois, the hearing was held in abeyance until she returned to Arizona. In November 2014, the
Commission was informed that Claimant was available to be in Arizona for a hearing because she was no longer employed by McBride; accordingly, the proceedings resumed.
¶5 Two weeks before the hearing, McBride submitted to the ALJ a complaint in an elder-abuse lawsuit he had filed against Claimant. McBride argued the complaint was relevant to Claimant's credibility.
¶6 On the day of the hearing, Claimant requested a continuance. She stated that she wanted to obtain an attorney to represent her in light of the recently submitted evidence concerning the elder-abuse lawsuit. The ALJ denied Claimant's request, stating the case had already been continued to accommodate Claimant and the evidence was growing stale. The ALJ also noted that due to the late nature of Claimant's request, certain administrative costs had already been incurred, including the cost for Claimant's doctor to appear and testify at the hearing.
¶7 The ALJ proceeded with the hearing, and the evidence showed that Claimant had suffered from back pain since a fall she had in 1994 that resulted in a compression fracture. In 2009, Claimant began to see Dr. Mecikalski for back pain related to the 1994 fracture. She remained under Dr. Mecikalski's care up to the date of the alleged injury. One week after the date of the alleged injury, Claimant went to Dr. Mecikalski complaining of pain in her back and hips. When she returned, still complaining of pain on January 30, the doctor ordered x-rays and ultimately discovered the prior compression fracture.
¶8 Claimant underwent an Independent Medical Examination ("IME"). The doctor who performed the IME did not testify at the hearing; rather, her IME report was submitted into evidence. In the report, the IME doctor noted that a compression fracture is acutely painful; however, absent from Claimant's medical records was any indication Claimant told Dr. Mecikalski she had suffered an acute event that marked the onset of her pain. As a result, the IME doctor concluded she could not state to any reasonable degree of medical probability the alleged injury caused Claimant's compression fracture.
¶9 The ALJ issued a decision upon hearing finding Claimant's claim noncompensable. Claimant sought review of the decision. The ALJ issued a decision upon review affirming the award. Claimant then sought special action relief in this court.
DISCUSSION
¶10 The decision to grant or deny a continuance is within the ALJ's discretion. Martin v. Indust. Comm'n of Ariz., 120 Ariz. 616, 617 (App. 1978); A.A.C. R20-5-156 (stating that party may request a continuance, and the request may be granted upon a showing of good cause). This discretion "must be exercised judiciously, and not arbitrarily." Martin, 120 Ariz. at 618. A claimant has the right to be represented by counsel at an Industrial Commission hearing. Id. at 617. Depending on the facts, the denial of a continuance precluding a claimant from obtaining legal representation may constitute an abuse of discretion. Id. at 618, n.2.
¶11 We conclude the ALJ abused his discretion. Claimant wanted to hire an attorney to respond to the elder-abuse lawsuit. This evidence was first submitted by McBride only two weeks before the hearing. Although the ALJ initially stated this evidence was not relevant, during the hearing McBride's counsel elicited testimony about the lawsuit, including specific questions as to whether Claimant coerced McBride into gifting assets to her. The ALJ did not prevent or strike this testimony, and he considered it in his written decision.
¶12 Claimant should have been given the opportunity to obtain counsel to respond to this highly prejudicial evidence. The ALJ noted that a continuance would incur inconvenience and extra cost; however, "the slight inconvenience and minimal extra cost is far outweighed by the importance of the right to be protected." Martin, 120 Ariz. at 618. From the record, we cannot say that the ALJ disregarded this evidence as irrelevant and that Claimant was not prejudiced.
CONCLUSION
¶13 The award is set aside.