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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            BRUCE TREY, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                  US AIRWAYS, INC., Respondent Employer,

    NEW HAMPSHIRE INSURANCE COMPANY, Respondent Carrier.

                              No. 1 CA-IC 17-0066
                                FILED 10-2-2018

               Special Action – Industrial Commission
                    ICA Claim No. 20171-230261
                     Carrier Claim No. 00608988
     The Honorable Marceline A. Lavelle, Administrative Law Judge

                                   AFFIRMED


                                    COUNSEL

Bruce D. Trey, Scottsdale
Petitioner

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Lundmark, Barberich, LaMont & Slavin PC, Phoenix
By R. Todd Lundmark, Danielle Vukonich
Counsel for Respondent Employer/Carrier
               TREY v. US AIRWAYS/NEW HAMPSHIRE
                         Decision of the Court



                     MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1            Bruce Trey appeals an Industrial Commission of Arizona
(“ICA”) award and decision upon review dismissing Trey’s request for
hearing. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Trey worked for Respondent Employer as a reservationist. In
February 2016, Trey sustained an insect bite near his right eye when he was
on the phone with a customer. He then filed a workers’ compensation claim,
which Respondent Carrier accepted. He sought medical treatment from a
physician who “diagnosed an insect bite with an allergic reaction next to
[Trey’s] right eye.”

¶3             In March 2016, Respondent Carrier issued its notice of claim
status, which “terminated benefits effective February 18, 2016, without
permanent disability.” Trey filed a Request for Hearing to protest the
termination of the claim. An administrative law judge (“ALJ”) heard the
matter and found that Trey’s February 2016 claim “was resolved by October
26, 2016[,] without need for further active or supportive care[.]”

¶4           Four days after the ALJ issued the award, Trey allegedly
sustained more insect bites—this time to his right arm—while at work. He
filed another workers’ compensation claim, which Respondent Carrier
denied. Trey protested the denial and requested a hearing, which was
granted. He attached to his hearing request a medical report that diagnosed
Trey as having “[n]ummular[1] dermatitis” and “Raynaud’s syndrome




1     “Nummular” means “coin-sized and coin-shaped.” W.B. Saunders,
Dorland’s Illustrated Medical Dictionary 1066 (25th ed. 1974).




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               TREY v. US AIRWAYS/NEW HAMPSHIRE
                         Decision of the Court

without gangrene.[2]” In support of his second insect bite claim, Trey later
forwarded the same medical report along with other medical documents
that were unrelated to his new claim. The ALJ determined, however, that
the medical documentation did not support Trey’s new claim and that “[a]ll
of the medical documentation [Trey] ha[d] forwarded relate[d] to treatment
from” his prior claim. Respondents also filed medical documents into
evidence.

¶5            Shortly after granting Trey’s hearing request, the ALJ
specifically advised Trey of his responsibilities as a pro per party. The ALJ
informed Trey by letter that “[i]f counsel for the employer or insurance
carrier conducts discovery, you are expected to participate in it[,]” which
“could include [appearing] at a deposition[.]”

¶6             Arguing that Respondents needed to conduct discovery to
determine whether Trey’s new injury claim alleging insect bites was for the
same condition that was at issue in his February 2016 claim, Respondents
sent a notice of deposition to Trey on July 18, 2017, scheduling a deposition
for August 3, 2017. Trey did not appear for the deposition, however, and
failed to provide an excuse for his absence. Consequently, Respondents
asked the ALJ to compel Trey to cooperate with discovery, and the ALJ
ordered Trey to attend a deposition on August 18, 2017. Trey asked that the
deposition be held at a different time to accommodate his work schedule.
Respondents rescheduled the deposition to August 29, 2017. The ALJ
ordered Trey to attend the deposition on that date.

¶7            At the August 29 deposition, Trey refused to raise his right
hand to take an oath and verbally assaulted the court reporter; the court
reporter stated in a later affidavit that “[h]e admonished [her] that [she]
w[ould] be personally responsible should he suffer a stroke or die by raising
his right hand due to Raynaud’s syndrome.” She also explained that “he
continued his verbally abusive monologue, with his left arm extended” and
pointed his finger at both Respondents’ counsel and her “in a very



2      Raynaud’s syndrome is “Raynaud’s disease (gangrene),” which is “a
primary or idiopathic vascular disorder characterized by bilateral attacks of
Raynaud’s phenomenon.” Id. at 461. Raynaud’s phenomenon is
“intermittent attacks of severe pallor of the fingers or toes and sometimes
of the ears and nose, brought on characteristically by cold and sometimes
emotion. When the condition is primary, i.e., without any causal disease, it
is termed Raynaud’s disease.” Id. at 1180.



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                TREY v. US AIRWAYS/NEW HAMPSHIRE
                          Decision of the Court

threatening manner.” After Trey's outburst, Respondents’ counsel ended
the deposition and then moved to dismiss Trey’s hearing request.

¶8             In responding to the motion to dismiss, Trey submitted
internet articles to the ALJ to support his contention that raising his arm
would put him at risk of suffering a stroke. The ALJ determined, however,
that “[n]one of the information provided support[ed] [Trey’s] contention,”
and entered an award dismissing Trey’s hearing request. The ALJ also
noted that “[Trey’s] behavior demonstrate[d] [a] pattern of non-compliance
with procedural rules and Orders, which has prejudiced [Respondents’]
ability to respond to [Trey’s] claim.” Trey timely requested administrative
review, which was granted. The ALJ affirmed the award. Trey timely
sought special action review in this Court.

                               DISCUSSION

¶9            Trey argues that the ALJ abused her discretion by dismissing
his hearing request as a sanction for his failure and refusal to participate in
discovery. 3 An ALJ’s sanction will be set aside only upon a clear showing
of an abuse of discretion. Nolden v. Indus. Comm’n, 127 Ariz. 501, 504 (App.
1980). We review the evidence in a light most favorable to sustaining the
award and we will not disturb an ICA decision that the evidence reasonably
supports. Lovitch v. Indus. Comm’n of Ariz., 202 Ariz. 102, 105 ¶ 16 (App.
2002).

¶10           Under A.A.C. R20–5–157(A), an ALJ has the discretion to
impose various sanctions, including dismissal of a claimant’s request for
hearing, when the claimant fails to follow the ICA rules or comply with an
ALJ’s order. To dismiss a request for hearing, an ALJ must consider, in the
procedural context of the hearing, whether (1) opposing counsel has acted
with due diligence, (2) the claimant has a pattern of failing to cooperate with
discovery, (3) the claimant has a reasonable explanation for failing to
comply with discovery requests, (4) evidence supports the claimant’s case,
and (5) the employer has suffered prejudice. See Brown v. Indus. Comm’n of
Ariz., 154 Ariz. 252, 254 (App. 1987).




3      In a separate motion, Trey moves to exclude all medical evidence
Respondents have submitted. Because Trey’s issue on appeal pertains to the
propriety of dismissing his case as a sanction for Trey’s lack of cooperation
during the discovery process, the admissibility of the medical evidence is
irrelevant. We therefore deny the motion.


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               TREY v. US AIRWAYS/NEW HAMPSHIRE
                         Decision of the Court

¶11           The ALJ did not abuse her discretion because reasonable
evidence supports the decision. First, Respondents acted with due diligence
by providing adequate notice to Trey of his depositions and by honoring
his accommodation request. See A.A.C. R20–5–142(A) (“A party may take
the oral deposition of another party . . . by serving a Notice of Deposition
 . . . upon the deponent . . . at least 10 days before the date of the oral
deposition.”).

¶12          Second, Trey’s failure to attend a duly noticed deposition,
even after being ordered to do so, and lack of cooperation during the
deposition that he did attend establish a pattern of non-compliance with
discovery that the ALJ reasonably found prejudiced Respondents’ ability to
investigate his current claim for insect bites. Without taking Trey’s
testimony under oath, Respondents could not investigate how Trey’s
current claim differs from the claim that was the subject of his prior
workers’ compensation claim for insect bites.

¶13           Third, Trey failed to provide a reasonable explanation for his
failure to comply with discovery. According to the record, he did not
provide a timely excuse for his absence from the August 3 deposition and
failed to support his contention that raising his arm to take an oath at the
August 29 deposition would put him at risk of suffering a stroke.
Furthermore, although Trey claims that he did not verbally assault the court
reporter and that the statement she provided in her affidavit was not
credible, this Court will not second-guess the ALJ’s credibility
determination. See Holding v. Indus. Comm’n of Ariz., 139 Ariz. 548, 551 (App.
1984).

¶14           Fourth, as the ALJ noted, Trey failed to present any evidence
supporting his current injury claim. He instead submitted medical
documents that addressed only his earlier February 2016 claim.
Considering the Brown factors, the record is sufficient to support the ALJ’s
dismissal of Trey’s hearing request.




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       TREY v. US AIRWAYS/NEW HAMPSHIRE
                 Decision of the Court

                      CONCLUSION

¶15   For the foregoing reasons, we affirm.




                 AMY M. WOOD • Clerk of the Court
                 FILED: AA




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