In order to resolve conflicts in testimony, the presiding judge must hear all the testimony, and not rely on transcripts from a hearing covered by a substitute courtesy judge.

In order to resolve conflicts in testimony, the presiding judge must hear all the testimony, and not rely on transcripts from a hearing covered by a substitute courtesy judge.

In Diaz, the applicant sustained an admitted work-related injury to his right arm and right hip when he fell 10 to 12 feet off a roof in October 2017. The applicant also complained of left wrist pain. The applicant had a pre-existing condition in his left wrist of a scaphoid fracture repair in 2012 with hardware remaining in his left wrist. In February 2018, the applicant had to get the hardware removed due to the screws loosening. The surgery was done by Dr. Champagne. The respondents denied liability for the left wrist injury and the applicant filed for hearing to contest the denial.

At the initial hearing, in October 2018, the applicant testified in front of Administrative Law Judge (“ALJ”) Eaton. When Dr. Champagne testified in December 2018, ALJ Campbell filled in as a courtesy judge. The parties consented to Judge Campbell presiding over the testimony of Dr. Champagne. Dr. Vella, the respondents’ IME, testified in January 2019 and ALJ Marmor presided over this proceeding. Judge Marmor did not ask the parties to consent to her handling this proceeding in place of Judge Eaton. Dr. Vella’s testimony was only partially completed and another hearing to complete Dr. Vella’s testimony took place in April 2019 in front of Judge Eaton.

Judge Eaton issued an award in May 2019 closing the claim based on her conclusion that Dr. Vella’s testimony was more probably correct than Dr. Champagne’s. The applicant appealed this award. The Arizona Court of Appeals (“the Court“) found that the applicant was denied substantial justice.

The Court held that the Industrial Commission of Arizona (“ICA”) must act judicially and observe fundamental principles of justice when hearing claims and issuing awards. Barber v. State, 47 Ariz. 294, 297 (1936). The hearing must be conducted in a manner that achieves substantial justice. A.R.S. 23-941(F). The Arizona Supreme Court has previously applied this standard of substantial justice to overturn an ICA award in a case in which the ALJ issuing the award had not heard all the testimony. Ohlmaier v. Indus. Comm’n, 161 Ariz. 113 (1989). In Ohlmaier, one judge heard testimony from the applicant and one physician. A second judge heard the testimony of another physician. A third judge heard the testimony of a third physician. The physicians disagreed about whether the injury was employment-related. The Supreme Court found that “substantial justice certainly requires that one judge shall hear all conflicting evidence which may form the basis of a contested industrial award. Any evidence affecting a factual conclusion, whether appearance, demeanor, or the weight of one witness’s testimony over another, should be heard by the one who is to decide the ultimate issues.”

Applying the ruling in Ohlmaier to the current case, the Court found that the process used in holding the hearing did not provide substantial justice. “As a rule, substantial justice requires that the resolver of testimonial conflicts, for either expert or non-expert witnesses, directly hear all conflicting testimony.”  Thus, the Court set aside the ALJ’s award.

Diaz v. Indus. Comm’n of Ariz., 2020 WL 3422848 (June 23, 2020).

Want to know more?  Contact Ilene Feldmeier at or 877-259-5693.

August 2020 Newsletter