Mother Tucker's Food Experience v. Industrial Commission
In Mother Tucker's Food Experience v. Industrial Commission, 142 Ariz. 496, 690 P.2d 797 (App. 1984), a claimant was awarded compensation for a workplace injury, and the employer requested review and an additional hearing, arguing that after the hearing it had obtained the time cards of the claimant's coworkers that showed "material discrepancies" in the coworkers' testimony. Id. at 499, 690 P.2d at 800.
The ALJ summarily affirmed the award without addressing the request for an additional hearing. Id.
The employer then sought special action review in this Court, arguing for the first time that the time cards showed perjury and fraud, entitling it to an additional hearing. Id.
The Court affirmed the ALJ's ruling for several reasons. The Court found that the employer's request for an additional hearing was untimely because the employer did not make it at the conclusion of the original hearing, as Rule R20-5-156 requires. Id. at 498-99, 690 P.2d at 799-800.
The employer "waited over two months after the close of the hearing and over a month after the adverse award" to file its request. Id. at 500, 690 P.2d at 801.
The fraudulent evidence exception to the timeliness requirement did not apply because although the request cited Southwest Nurseries, "there is no allegation of perjury or fraud in the request, affidavit or memorandum." Id. at 499, 690 P.2d at 800.
The Court also found that the request did not satisfy the substantive requirements of Rule R20-5-156: it did not state the nature and substance of the time cards, the name and address of the employer's representative who would testify about the time cards, or the reason that the employer was unable to produce them at the hearing. Id. at 500, 690 P.2d at 801.
The Court further found that the employer had not shown due diligence in obtaining the time cards justifying their late presentation because the time cards "presumably were always in petitioner employer's possession and control." Id. at 499, 690 P.2d at 800.
Apart from the inadequacy of the request, the Court also rejected the employer's claim that the time cards showed "overwhelming" evidence of fraud because no witness had confessed to perjury and the affidavit averred only that the employer had found evidence that would show "discrepancies" in the witnesses' testimony. Id. at 500, 690 P.2d at 801.
The Court noted that it was uncertain "whether the touted 'evidence' applied to one or both of the co-workers . . . and what the alleged discrepancy is between the time cards and the testimony and what this ultimately implies." Id.
The request for additional hearing not only failed to state "'overwhelming evidence of fraud,' it states no evidence of fraud whatsoever but is merely conclusory and relates to purported impeachment evidence." Id. at 501, 690 P.2d at 802.
The Court concluded that the ALJ was "fully justified" in denying the request for an additional hearing "given the blatant insufficiency of the request." Id.