Full title: JUDY A. TITKO, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA…
Court: ARIZONA COURT OF APPEALS DIVISION ONE
Date published: Mar 1, 2016
Facts
The 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. The claimant wheeled McBride to his bed and lifted him into the bed. The claimant contends this action caused her injury.
On January 25, 2013, the Claimant went to her doctor complaining of pain in her back and hips. Despite taking pain medication, the pain persisted, so the Claimant returned to her doctor on January 30. The doctor ordered x-rays of the Claimant’s spine which revealed a T12 compression fracture and multilevel lumbar degenerative disease.
The claimant filed a report of her injury on January 6, 2014; the claim was denied by McBride’s insurance provider. The claimant thereafter requested a hearing. However, because the 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 the Claimant was available to be in Arizona for a hearing because she was no longer employed by McBride; accordingly, the proceedings resumed.
Two weeks before the hearing, McBride submitted to the ALJ a complaint in an elder abuse lawsuit he had filed against the Claimant. McBride argued the complaint was relevant to Claimant’s credibility.
On the day of the hearing, the 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 the Claimant’s request, stating the case had already been continued to accommodate the Claimant and the evidence was growing stale. The ALJ also noted that due to the late nature of the Claimant’s request, certain administrative costs had already been incurred, including the cost for the Claimant’s doctor to appear and testify at the hearing.
The ALJ proceeded with the hearing, and the evidence showed that the 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, the 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.
The 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 as evidence. In the report, the IME doctor noted that a compression fracture is acutely painful; however, absent from the Claimant’s medical records was any indication the 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 the Claimant’s compression fracture.
The ALJ issued a decision upon hearing finding Claimant’s claim noncompensable. The claimant sought a review of the decision. The ALJ issued a decision upon review affirming the award. The claimant then sought special action relief in this court.
Issue
Decision
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 irrelevant, during the hearing McBride’s counsel elicited testimony about the lawsuit, including specific questions as to whether the 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.
The Claimant should have been allowed 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.
The award is set aside.