Sanders v. Bowie

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BERNICE M. SANDERS, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

BOWIE INVESTMENT GROUP, INC., Respondent Employer,

AMERICAN LIBERTY INSURANCE CO / S & C CLAIMS SVC,
Respondent Carrier.

No. 1 CA-IC 15-0060
FILED 5-19-2016

Special Action - Industrial Commission
ICA Claim No. 20143-530186
Carrier Claim No. 14562184

Anthony Halas, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Bernice M. Sanders, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
Lundmark, Barberich, La Mont & Slavin, P.C., Tucson
By Eric W. Slavin
Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.

W I N T H R O P, Presiding Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review granting the motion to
dismiss filed by the respondent employer Bowie Investment Group, Inc.
(“Bowie”) and the respondent carrier American Liberty Insurance Co / S &
C Claims Svc (the “carrier”).1 For the following reasons, we set aside the
award and decision upon review.

FACTUAL AND PROCEDURAL HISTORY

¶2 Claimant Bernice M. Sanders was employed by Bowie as a
home health care worker when she injured her shoulder. She filed a
worker’s report of the injury in December 2014, listing her then-current
address (the “old address”). After the carrier denied her claim, Sanders
requested a hearing with the ICA. In April 2015, Sanders provided
Respondents with her new address (the “updated address”). Apparently,
Respondents mis-transcribed the updated address by missing one digit in
the street number, and forwarded the wrong address to the ICA; as a result,
ICA’s notice of a hearing on June 12, 2015 (the “June hearing”) was returned
as undeliverable.2 Nevertheless, Sanders did appear at the June hearing
and, with Respondents present, provided Administrative Law Judge
(“ALJ”) Marwil and Respondents with the updated address. At that
hearing, ALJ Marwil indicated she would set further hearings for the

1 Bowie and the carrier are collectively referred to as “Respondents.”

2 Sanders apparently received two letters from Respondents sent to
this wrong address. But the record is unclear how Sanders received notice
of the June hearing.

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testimony of the medical witnesses, Dr. Le and Dr. Shapiro. The ICA did
not, however, immediately update Sanders’s address in its system, and
approximately two weeks later, set the hearing for Dr. Le’s testimony for
July 9, 2015, and sent the notice of that hearing to Sanders at her old address.
Sanders did not attend the July 9 hearing. On July 14, 2015, Sanders again
updated her address with the ICA and allegedly sent a copy to
Respondents. Upon receiving the updated address, ALJ Marwil realized
the ICA had sent Sanders’s copy of the notice for Dr. Le’s July hearing to
the wrong address, and reset Dr. Le’s testimony for August 13, 2015, with
an amended notice sent to Sanders at the updated address, with a copy to
Respondents.

¶3 Respondents had previously scheduled Sanders for an
independent medical examination (“IME”) on July 21, 2015 with Dr.
Shapiro, sending the notice of the appointment to Sanders’s old address.
Approximately three weeks after the original hearing set for Dr. Le’s
testimony and one week after the IME appointment, Respondents moved
to dismiss Sanders’s request for hearing, alleging Sanders had failed to
appear at the July 9 hearing and for the IME. Respondents sent the motion
to Sanders at the old address; not surprisingly, Sanders did not respond to
the motion. In the decision upon hearing, ALJ Halas3 agreed with
Respondents and granted the motion, sending the decision upon hearing to
the now-updated address. Having received the decision upon hearing,
Sanders immediately requested review, explaining she had never received
the notice of either Dr. Le’s July hearing or the IME appointment despite
having previously updated her address with both the ICA and
Respondents. Respondents contended that they had never received
Sanders’s updated address, and argued that she nevertheless had received
the notice of Dr. Le’s July hearing from ALJ Marwil, and the notice of the
IME appointment from Respondents sent to the old address before Sanders
updated her address on July 14. ALJ Halas summarily affirmed the
dismissal in the decision upon review.

¶4 Sanders timely sought review by special action. We have
jurisdiction pursuant to Arizona Revised Statutes sections (“A.R.S.”) 12-

3 At some point after the order rescheduling Dr. Le’s testimony, ALJ
Halas replaced ALJ Marwil.

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120.21(A)(2), 23-951(A), and Arizona Rules of Procedure for Special Actions
10.4

ANALYSIS

I. Standard of Review

¶5 In reviewing findings and awards of the ICA, we defer to the
ALJ’s factual findings, but review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We will
uphold ALJ’s findings if reasonably supported by substantial evidence.
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367
(1988).

II. The Merits

¶6 ALJ Halas sanctioned Sanders by dismissing her request for
hearing, finding Sanders had abandoned her request for hearing because
she failed to appear at Dr. Le’s July 9 hearing and for the IME appointment.
A claimant must appear at a hearing or an IME appointment; the ALJ may
sanction the claimant for failure to appear at such a hearing or for an IME.
A.R.S. § 23-1026(A); Arizona Administrative Code R20-5-157. If good cause
is shown, the ALJ may excuse the failure to appear or lift sanctions imposed.
Brown v. Indus. Comm’n, 154 Ariz. 252, 254, 741 P.2d 1230, 1232 (App. 1987).
In his decision, ALJ Halas concluded Sanders had not shown any such good
cause. We disagree.

¶7 Sanders contends she never received notice of Dr. Le’s July
hearing or the IME appointment. On this record, there is no evidence to
show otherwise. In fact, no evidence in the record shows Respondents had
sent the notice of the IME, or the ICA had sent notice of the July 9 hearing
to Sanders’s updated address. As they did in their response to the Request
for Review, Respondents argue that they never received the updated
address that Sanders provided on July 14, 2015, and that Sanders should
still have received their notice of the IME appointment sent to Sanders’s old
address because they sent the notice before she updated her address.

¶8 On this record, even assuming Respondents never received
the updated address sent again on July 14, 2015, the evidence appears to be
that Respondents received the updated address on two prior occasions:

4 Absent material changes since the relevant dates, we cite a statute’s
current version.

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first, when Respondents received the updated address from Sanders in
April 2015 (when Respondents apparently mis-transcribed the street
number); and second, during the June hearing with ALJ Marwil. Both of
these events occurred before Respondents set the IME appointment.
Despite these timely notifications, Respondents still sent the notice of the
IME appointment, as well as their motion to dismiss Sanders’s request for
hearing, to Sanders at her old address.

¶9 We further note that Dr. Le’s July 9 hearing was eventually
cancelled due to the ICA’s admitted error in sending the notice of the
hearing to the wrong address. In light of that error, and as a matter of due
process and the need to cancel and reschedule Dr. Le’s testimony, ALJ
Halas erred in granting Respondents’ motion to dismiss on the failure of
Sanders to appear for the July 9 hearing.

CONCLUSION

¶10 The award and the decision upon review are set aside.
Because Sanders’s costs on appeal were waived, we do not award her costs.
The case is remanded to the ICA for further proceedings consistent with
this decision.

:ama

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