Gonzales v. ICA/Dats/Pinnacle

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 03/29/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ROBERT GONZALES, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, DATS TRUCKING, Respondent Employer, PINNACLE RISK MANAGEMENT, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-IC 11-0059 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20090-550146 Carrier Claim No. WCAWC 2009563974 The Honorable Joseph L. Moore, Administrative Law Judge AWARD AFFIRMED Robert Gonzales In Propria Persona Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Albuquerque, N.M. Phoenix Klein, Lundmark, Barberich & LaMont P.C. By Julie A. Doherty Attorneys for Respondent Employer and Carrier Phoenix K E S S L E R, Judge ¶1 Claimant Robert Gonzales ( Gonzales ) seeks special action review of an Industrial Commission of Arizona ( ICA ) Administrative Law Judge s ( ALJ ) dismissal of his Request for Hearing for failure participation of concedes missed he to parties in comply the deadlines with hearing set for rules governing process. Gonzales interrogatories and depositions and that [t]he judge had no choice but to dismiss [his] case. However, he feel[s] that it is unlawful to have [his] case dismissed because [he has] missed the deadlines that were set forth. dismissal. He asks this Court to reverse the ALJ s We affirm the dismissal. FACTUAL AND PROCEDURAL HISTORY ¶2 and In February 2009, Gonzales was injured in the course scope of his employment with DAT Trucking. The ICA determined Gonzales had a permanent disability of seven percent in his upper left arm, which was his minor arm. From February 2009 until November 2010, Gonzales received medical and monetary compensation benefits from the ICA. claim effective November 2010. 2 The ICA closed Gonzales s ¶3 and Gonzales filed a Request for Hearing in January 2011, the ALJ scheduled a hearing for March 2011. Because Gonzales was attempting to find legal counsel to represent him at the hearing, the ICA continued the hearing until May 2011. ¶4 Between March and April 2011, DAT Trucking, through Pinnacle Risk Management ( Respondents ) served interrogatories upon Gonzales deposition in and notified mid-March him 2011. of a scheduled Because the telephonic hearing was continued, Respondents rescheduled the deposition to late April 2011. Respondents twice called Gonzales to conduct the deposition at the scheduled time, but Gonzales did not answer the telephone. Also, even after the ALJ ordered Gonzales to respond to the interrogatories, Gonzales failed to do so. ¶5 In late April 2011, Respondents filed dismiss for failure to answer the interrogatories. a motion to Respondents then filed a supplement to the motion to dismiss, asking the ALJ to dismiss on the additional ground that Gonzales failed appear for the telephonic deposition. to Gonzales did not respond to either motion. ¶6 In May 2011, the ALJ dismissed Gonzales s Request for Hearing for noncompliance with rules governing participation of parties in the hearing process. The ALJ determined Gonzales abandoned his Request for Hearing and that dismissal was the 3 appropriate sanction. Gonzales filed a timely Request for Review. ¶7 filed The his jurisdiction ALJ affirmed Petition pursuant his decision, for Special to Arizona and Action. Revised Gonzales This timely Court Statutes has ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rule of Procedure for Special Actions 10. STANDARD OF REVIEW ¶8 We review an ALJ s decision to impose sanctions against a party for noncompliance with the rules of procedure for an abuse of discretion. Nolden v. Indus. Comm n, 127 Ariz. 501, 503-04, 622 P.2d 60, 62-63 (App. 1980). We consider the evidence in the light most favorable to sustaining the award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). We will uphold the ALJ s decision if there is reasonable evidence to support it and we will not reweigh the evidence upon review. Jaramillo v. Indus. Comm n, 203 Ariz. 594, 596, ¶ 6, 58 P.3d 970, 972 (App. 2002). DISCUSSION ¶9 Arizona Administrative Code ( A.A.C. ) R20-5-145(E)(2) allows an ALJ to [d]ismiss [an] action or proceeding if a party willfully fails to appear for a deposition after being served with proper notice of the deposition, or fails to serve answers to interrogatories after 4 proper service of the interrogatories. See also A.A.C. R20-5-157(A)(1) (allowing sanctions against any party . . . who fails to comply with [the administrative rules] or fails to comply with an order of the presiding ALJ, including [d]ismissal of [a] party s request for hearing ). good cause. ¶10 An ALJ may lift a sanction if the party shows A.A.C. R20-5-157(B). Here, Gonzales states he missed the discovery deadlines because of the time it took for him to consult with legal counsel. After his request for a continuance in March, and despite having two months to find counsel, Gonzales failed to ask the ALJ for a second continuance or even provide an update regarding his search for counsel. Neither the ALJ nor Respondents heard from Gonzales until his Request for Review, filed in June. In his Request for Review, Gonzales conceded he failed to respond to all court documents in a timely manner, but asked that Respondents pay for his medical expenses. Gonzales did not provide a reason why he failed to timely comply with the requests for interrogatories and deposition, ask for a continuance, update the ALJ, or respond to Respondents motion to dismiss. Nor did Gonzales argue that he was improperly served. ¶11 Gonzales also alleges he misunderstood Respondent s counsel s letter, dated June 27, 2011, in which counsel stated she had jury duty; Gonzales alleges he believed he had to wait 5 until the jury hearing. duty . . . was completed to have another In the letter he references, Respondent s counsel asked for additional time to respond to Gonzales s June 17, 2011, Request for Review, in part because she had jury duty for one day during the period of time to file a response. ¶12 Gonzales s claim is without merit. his case in May 2011. The ALJ dismissed Gonzales understood this, given that he filed his Request for Review on June 17, 2011. confusion regarding Respondent s counsel s Thus, Gonzales s jury duty did not affect his failure to comply with discovery or the ALJ s orders. ¶13 Therefore, the evidence supports the ALJ s dismissal of Gonzales s Request for Hearing as a sanction for his failure to comply with procedural rules and the ALJ s orders. CONCLUSION ¶14 For the foregoing reasons, we affirm dismissal of Gonzales s Request for Hearing. /s/ DONN KESSLER, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ JON W. THOMPSON, Judge 6 the ALJ s

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