Opinion
1 CA-IC 23-0034
07-30-2024
SYLVIA VARGAS, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, BODEGA LATINA CORP, Respondent Employer, SAFETY NATIONAL CASUALTY CORP, Respondent Carrier.
Sylvia Vargas, Phoenix Petitioner Employee Industrial Commission of Arizona, Phoenix By Afshan Peimani Counsel for Respondent Industrial Commission of Arizona Lundmark, Barberich, La Mont & Puig, PC, Phoenix By Kevin E. Karges Counsel for Respondent Employer and Respondent Carrier
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action - Industrial Commission ICA Claim No. 20192600449 Carrier Claim No. 036-000402 The Honorable Kenneth Joseph Hill, Administrative Law Judge
Sylvia Vargas, Phoenix Petitioner Employee
Industrial Commission of Arizona, Phoenix By Afshan Peimani Counsel for Respondent Industrial Commission of Arizona
Lundmark, Barberich, La Mont & Puig, PC, Phoenix By Kevin E. Karges Counsel for Respondent Employer and Respondent Carrier
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.
MEMORANDUM DECISION
KILEY, JUDGE
¶1 Sylvia Vargas appeals the dismissal of her hearing request by the Industrial Commission of Arizona ("ICA"). For the following reasons, we affirm.
PROCEDURAL HISTORY
¶2 Vargas hurt her back and knee while working for Bodega Latina Corp. ("Bodega") in July 2019. Bodega's insurance carrier, Safety National Casualty Corp. ("Safety National"), accepted her claim. Vargas received benefits and treatment until she was medically discharged in October 2019. Safety National then closed her claim without permanent impairment or supportive care. Vargas challenged the closure of her claim. The ICA held an evidentiary hearing over several days in July 2020, October 2020, and February 2021 in which Vargas represented herself. In March 2021, the administrative law judge (the "ALJ") issued a ruling (the "March 2021 decision") determining that Vargas was medically stationary with no permanent impairment.
¶3 In April 2021, Vargas sought review of the March 2021 decision. In support of her position, she submitted additional medical records, including records from medical appointments in 2019 and 2020 which Vargas had not previously submitted. Though they were untimely, the ALJ nonetheless reviewed the newly-disclosed records and found nothing in them "to support [Vargas's] position" that she "required active medical treatment for a medical condition caused or contributed to by the industrial accident." On the contrary, the ALJ noted that a record from December 2019 reflected that Vargas had asked her medical provider for a note stating that she "can never work again" along with the explanation, "She is applying for disability and needs the diagnosis." Finding nothing in the newly-submitted medical records to "change the findings [previously] made," the ALJ issued a ruling in July 2021 affirming the March 2021 decision.
¶4 Almost two years later, in June 2023, Vargas filed a Request for Hearing under A.R.S. § 23-1061(J), which allows the ICA to investigate claims in which claimants allege they are not receiving the benefits to which they are entitled. Bodega and Safety National ("Appellees") requested dismissal, pointing out that Vargas's claim had long since been closed and she was no longer receiving benefits. "[I]f [Vargas] is seeking additional benefits," Appellees asserted, "she would need to file a petition to reopen." The ICA did not dismiss Vargas's request, however, and instead set the case for a hearing in October 2023, with a prehearing videoconference on July 31, 2023.
¶5 Vargas failed to appear for the prehearing videoconference, and Appellees again moved to dismiss the hearing request. In support of their motion, they asserted that Vargas had not only failed to appear for the prehearing videoconference but had also failed to respond to interrogatories as required by A.A.C. R20-5-144 or to appear for a properly noticed deposition as required by A.A.C. R20-5-142. See also A.A.C. R20-5-149 (parties must appear at scheduled hearings unless excused by the ALJ). The ALJ sent Vargas a notice that she had until August 26, 2023, to respond to the motion to dismiss. Vargas never filed a response.
¶6 On August 30, 2023, the ALJ dismissed Vargas's request for hearing because (1) she had failed to cooperate with the prehearing discovery process without a showing of good cause and (2) Appellants had "suffered prejudice by complete frustration of discovery." Vargas responded on September 13, 2023, by filing a letter stating that she had attempted to call in to the pretrial videoconference but was, for unexplained reasons, unsuccessful. Along with her letter, Vargas sent handwritten responses to the written interrogatories.
¶7 The ALJ affirmed the dismissal, adding that Vargas's claim was closed in 2019 and the closure had been reaffirmed in 2021. Vargas filed a timely statutory special action in this court. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A), and 23-943(H).
DISCUSSION
¶8 In her Opening Brief, Vargas asserts that her medical condition has worsened and asks that her disability benefit payments be resumed. We interpret Vargas's argument as a challenge to the ALJ's dismissal of her June 2023 hearing request.
¶9 In response, Appellees argue, first, that this Court should dismiss Vargas's appeal because her opening brief fails to comply with ARCAP 13.
¶10 ARCAP 13 requires, inter alia, an appellant's brief to provide "citations of legal authorities and appropriate references to the portions of the record on which the appellant relies." ARCAP 13(a)(7)(A). As Appellees correctly assert, Vargas's opening brief does not include this information and so does not comply with the rule's requirements. We nonetheless decline to dismiss this appeal for Vargas's non-compliance with ARCAP 13 because Appellees never moved to strike the opening brief under ARCAP 25 and, more important, because "resolution of cases on their merits is preferred," DeLong v. Merrill, 233 Ariz. 163, 166, ¶ 9 (App. 2013).
¶11 Appellees next argue that the ALJ properly dismissed Vargas's June 2023 request because she "failed to participate in discovery, failed to attend [the] pre-hearing conference, and failed to marshal any evidence supporting her request for hearing."
¶12 Given that Vargas's case was closed in March 2021 and the closure affirmed in July 2021, the only avenue of redress available to Vargas in June 2023 was to petition to reopen her claim under A.R.S. § 23-1061(H). To successfully reopen her claim, Vargas was required to come forward with evidence, in the form of "a statement from a physician," of "a new, additional or previously undisclosed temporary or permanent condition." Id. Vargas made no attempt to comply with this statutory requirement. Her failure to petition to reopen her claim alone warrants affirming the ALJ's dismissal of her June 2023 hearing request. See Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 605, ¶ 10 (App. 2000) (noting that ICA award that "reaches the right result . . . will generally be affirmed upon review," even if for a different reason).
¶13 An ALJ may dismiss a hearing request if a party willfully fails to appear for a deposition or fails to comply with the ICA procedural rules or orders issued by an ALJ. See A.A.C. R20-5-145(E)(2); R20-5-157(A)(1); see also King v. Indus. Comm'n, 160 Ariz. 161, 163 (App. 1989). We review such dismissals for abuse of that discretion. See Brown v. Indus. Comm'n, 154 Ariz. 252, 252 (App. 1987).
¶14 Claimants for workers' compensation benefits must respond to written discovery requests, attend properly-noticed depositions, and appear at hearings unless excused by the presiding ALJ. A.A.C. R20-5-142, -143, -144, and -149(A). Failure to comply with any of these obligations exposes a claimant to sanctions, which may include dismissal. A.A.C. R20-5-157(A). An offending party may nonetheless avoid sanctions upon a showing of good cause for his or her failure to comply with the rules. A.A.C. R20-5-157(B).
¶15 To establish good cause for a failure to comply with his or her obligations under ICA rules, a claimant must show that the failure was due to excusable neglect or attributable to reasons outside the claimant's control. See Maldonado v. Ariz. Dept. of Econ. Sec., 182 Ariz. 476, 478 (App. 1994) (a showing of excusable neglect establishes good cause for failure to appear). Neglect is excusable when it might be the action of a reasonably prudent person under the same circumstances. Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993). Carelessness is not excusable neglect, id., nor is unexplained neglect excusable, Baker Int'l Assocs., Inc. v. Shanwick Int'l Corp., 174 Ariz. 580, 583 (App. 1993).
¶16 Vargas has not shown that the ALJ's finding that Vargas failed to cooperate with the discovery process constituted an abuse of discretion. She does not dispute that she failed to attend a properly-noticed deposition and failed to timely respond to interrogatories. Likewise, she did not respond to Appellees' motion to dismiss her hearing request. The record supports the ALJ's finding that Vargas frustrated the administrative process by failing to adhere to her obligations as a litigant.
¶17 Of course, a failure to participate in the administrative process does not necessarily justify dismissal of the case. See King, 160 Ariz. at 163 (holding that claimant's failure to attend deposition or respond to interrogatories did not warrant dismissal because claimant did not display "a pattern of a failure to cooperate"). Here, however, even crediting Vargas's statement that she attempted to call in to the prehearing videoconference and was (for unexplained reasons) unsuccessful, the record shows that the ALJ had ample cause to find that Vargas had failed to cooperate with her obligations as a litigant. Vargas has never offered any explanation for her failure to appear for her deposition or to timely respond to interrogatories. The fact that she waited almost two years to challenge the ALJ's decision affirming the closure of her case further illustrates her lack of diligence in pursuing her claim. See Brown, 154 Ariz. at 254 (identifying lack of diligence as a factor to consider in determining whether dismissal of claim is warranted). Dismissal of Vargas's hearing request was not an abuse of discretion.
¶18 An ALJ has an obligation to conduct proceedings in a manner that achieves substantial justice. A.R.S. § 23-941(F); see also Gordon v. Indus. Comm'n, 23 Ariz.App. 457, 460 (App. 1975) (noting that "Industrial Commission hearings are fundamentally different from the usual adversary proceedings" because "[t]heir purpose . . . remains the humanitarian and compassionate one of aiding and compensating the injured worker"). Our review of the record confirms that the ALJ complied with this obligation. The ALJ did not dismiss Vargas's hearing request outright as Appellees had asked, instead setting a hearing to give Vargas an opportunity to pursue her claim. She then failed to participate in discovery as required and failed to attend the hearing. When Appellees again moved to dismiss her hearing request, the ICA sent Vargas a notice setting a deadline by which to respond to the motion. Vargas never responded. The ALJ gave Vargas great leeway in presenting her claim, and Vargas failed to make a reasonably diligent effort to do so. On this record, the ALJ's decision to dismiss the hearing request did not deny Vargas substantial justice.
CONCLUSION
¶19 We affirm.