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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 10-2-2018
TREY v. US AIRWAYS/NEW HAMPSHIRE

Decision of the Court

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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).
TREY v. US AIRWAYS/NEW HAMPSHIRE

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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.
TREY v. US AIRWAYS/NEW HAMPSHIRE

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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. 
TREY v. US AIRWAYS/NEW HAMPSHIRE

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¶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. 
TREY v. US AIRWAYS/NEW HAMPSHIRE

Decision of the Court

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CONCLUSION

¶15 For the foregoing reasons, we affirm.