Euro v. lopez/special ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EURO MOVING & STORAGE LLC,
Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
EDGAR LOPEZ,
Respondent Employee,
SPECIAL FUND/NO INSURANCE SECTION,
Respondent Party in Interest.
No. 1 CA-IC 16-0056
FILED 4-11-2017
Special Action - Industrial Commission
ICA Claim No. 20152-940613
The Honorable Jonathan Hauer, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Salvador Phillips PLLC, Phoenix
By Anthony G. Salvador
Counsel for Petitioner Employer
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA
Industrial Commission of Arizona, Phoenix
By Stephen D. Ball
Counsel for Respondent Party in Interest, Special Fund Division/No Insurance
Section
Phillips Law Group PC, Phoenix
By Karly K.R. White, George V. Sarkisov
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.
D O W N I E, Judge:
¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) award. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 Edgar Lopez suffered three broken vertebrae when he fell
from a moving truck owned by Euro Moving and Storage, LLC (“Euro”)
on August 15, 2015. Euro’s managing members are Valentin Petcu and
Francisca Delgado, and Petcu is Euro’s statutory agent. Petcu called
Lopez the day after his fall to provide details about his next job
assignment for Euro. Lopez advised Petcu of his injuries, and Petcu stated
he would call back, but did not do so.
¶3 Lopez reported his injury to the ICA, which learned that
Euro had no workers’ compensation coverage. The ICA referred the claim
1 We consider the evidence in the light most favorable to sustaining
the ICA’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App.
2002). We have disregarded statements of fact included in the opening
brief that lack citations to the record. See ARCAP 13(a)(5), (d).
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to the Special Fund Division/No Insurance Section (“Special Fund”). A
Special Fund investigator spoke with Delgado, who denied that Euro had
an employee named Edgar Lopez.
¶4 The ICA set a hearing and mailed a notice of hearing to Euro
and subpoenas to both Petcu and Delgado at Euro’s address of record. No
one from Euro appeared at the hearing. After considering testimony from
Lopez and several exhibits, the administrative law judge (“ALJ”) found
that Lopez was Euro’s employee and that he had sustained a compensable
injury.
¶5 After the award issued, Petcu wrote to the ALJ “asking for a
review” and stating that he had “no knowledge of what this claim is about
since I have no employee by the name Edgar Lopez.” The ALJ advised
Petcu that he could not act on behalf of Euro because he was not a licensed
attorney. Euro subsequently retained counsel, who requested a review
hearing. The ALJ denied that request, later clarifying that he had not
denied Euro’s request for review, only its request to “set a review
hearing.” The ALJ affirmed the decision upon hearing. He concluded
that Euro’s “failure to participate in this litigation despite proper notice
does not constitute a denial of due process or defective process.”
¶6 Euro filed a timely petition for special action, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(2), 23-951(A) and Arizona Rule of Procedure for Special
Actions 10.
DISCUSSION
¶7 We will not disturb the ICA’s award if it is reasonably
supported by the evidence. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105,
¶ 16 (App. 2002). We defer to the ALJ’s factual findings but review his
legal conclusions de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14
(App. 2003).
¶8 Euro contends it was denied due process because the ICA
rejected its request for rehearing, preventing it from cross-examining
Lopez. We disagree.
¶9 Although cross-examination is a fundamental right in an
Industrial Commission proceeding, Lopez v. Indus. Comm’n, 162 Ariz. 578,
580 (App. 1989), it was Euro’s failure to appear that deprived it of that
right. It is undisputed that Euro’s statutory agent — Petcu — received
notice of the hearing. Additionally, Delgado told the Special Fund
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investigator that Euro had received “the forms [the ICA] sent.” According
to Euro, Petcu “did not comprehend that the materials he had received by
mail related to a judicial proceeding.” But instead of inquiring what the
matter was about, Euro ignored the notices and subpoenas.
¶10 Euro also asserts excusable neglect based on Petcu’s lack of
English proficiency. The record, though, includes no evidence or affidavit
corroborating that claim. Moreover, Euro’s decision to select a statutory
agent who reportedly cannot understand English would not constitute
excusable neglect. Cf. Daou v. Harris, 139 Ariz. 353, 359 (1984) (Test of
what is excusable and, hence, sufficient to set aside a default judgment is
“whether the neglect or inadvertence is such as might be the act of a
reasonably prudent person under similar circumstances.”); Ulibarri v.
Gerstenberger, 178 Ariz. 151, 163 (App. 1993) (carelessness is not
synonymous with excusable neglect). Additionally, the record
demonstrates that Delgado is English-proficient, Petcu wrote to the ALJ in
English, Euro immediately retained counsel after receiving the ALJ’s letter
written in English, and Lopez presented evidence from which the ALJ
could conclude that Petcu can communicate in English.
¶11 Euro also contends Lopez was not its employee. But the
record amply supports the ALJ’s finding that Lopez worked for Euro and
that he was an employee of the company, not an independent contractor.
Arizona applies a “right to control” test in determining whether an
individual is an employee or an independent contractor; relevant factors
include:
the duration of the employment; the method of payment;
who furnishes necessary equipment; the right to hire and
fire; who bears responsibility for workmen’s compensation
insurance; the extent to which the employer may exercise
control over the details of the work, and whether the work
was performed in the usual and regular course of the
employer’s business.
Anton v. Indus. Comm’n, 141 Ariz. 566, 571 (App. 1984).
¶12 Lopez testified that Petcu hired him on February 7, 2015 and
that he worked exclusively for Euro until the date of his injury. Lopez
worked approximately 60 hours per week at a rate of $10 per hour and
was paid in cash. Petcu would call Lopez to advise him of jobs, pick him
up in Euro’s truck, drive him to job sites, and provide him with the
necessary equipment and supplies. There is no evidence that Lopez was
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anything other than an employee,2 other than Delgado’s statement to the
Special Fund investigator that Euro “never had an employee named Edgar
Lopez.” Based on the evidence before him, the ALJ properly concluded
that Euro employed Lopez.
CONCLUSION
¶13 For the foregoing reasons, we affirm the ICA award.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Notwithstanding this fact, the Special Fund’s counsel stated in his
closing argument before the ALJ:
Well, Judge, I’m afraid there is not much evidence to
contradict Mr. Lopez’s testimony other than the Special
Fund investigator’s telephonic notes with the purported
owners of Euro Moving and Storage at which point they
claimed that Mr. Lopez was not an employee of theirs. . . .
Mr. Petcu and I believe his wife, Francisca Delgado, were
subpoenaed and they failed to appear today, so I guess the
Special Fund’s position is that we’re unclear based on the
evidence whether or not Mr. Lopez was indeed an employee
of Euro Moving and Storage.
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