IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SHIRLEY GRAY, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

COURTYARD TOWERS DBA, Respondent Employer,

CHURCH MUTUAL INSURANCE CO, Respondent Carrier.

No. 1 CA-IC 23-0010

Special Action - Industrial Commission

ICA Claim No. 20213370025 

Carrier Claim No. 005484-009207-WC-01

The Honorable Michelle Bodi, Administrative Law Judge

REMANDED

COUNSEL

Shirley Gray, Mesa

Petitioner Employee

Industrial Commission of Arizona, Phoenix

By Afshan Peimani

Counsel for Respondent, ICA

Jardine Baker Hickman & Houston P.L.L.C., Phoenix

By Stephen C. Baker 

Counsel for Respondent, Employer and Insurance Carrier

FILED 07-18-2024
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

2

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 An Industrial Commission of Arizona (ICA) Administrative 

Law Judge (ALJ) dismissed Shirley Gray’s workers’ compensation hearing 

request after she failed to file evidence and appear at a twice-rescheduled 

hearing. Then, when Gray objected to the dismissal alleging lack of notice, 

the ALJ summarily denied relief. We hold that the ALJ abused her 

discretion by denying relief without making any factual inquiry into 

Gray’s colorable claim of good cause for her failure to participate.

Accordingly, we remand for further proceedings. 

BACKGROUND

¶2 In October 2021, while working as a manager in the dining 

room at an assisted living facility, Gray tripped and fell onto her knees.

The next day, she went to an urgent care. The doctor observed contusions 

with pain, bruising, and edema on both knees. He treated Gray with ice 

and ibuprofen, and he ordered X-rays. The X-rays showed that both knees 

were structurally normal.

¶3 Gray filed a workers’ compensation claim. Church Mutual 

Insurance Company accepted her claim as a “no loss” claim because she 

did not miss more than seven consecutive days of work. In October 2022, 

Church closed Gray’s claim because no doctor had treated her in more 

than three months.

¶4 In December 2022, Gray protested the closure. She explained 

that the accident had caused meniscus tears in both knees, she still had 

pain, and she needed more treatment. The ALJ scheduled an initial 

hearing for April 4, 2023, and mailed notice to Gray’s address on file. The 

notice stated that the proceeding would be governed by the rules in the 

Arizona Administrative Code (A.A.C.), that “[a]ll parties will be deemed 

to have knowledge of these rules,” and that information about the hearing 

processes could be found on ICA’s website. The notice stated that Gray 

had the burden of proof, and that the parties had to request witnesses and 
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

3

file documentary evidence before the hearing. The notice directed Gray to

appear at the videoconference, or, if unable to do so, to call the ALJ to 

make alternate arrangements. The notice did not contain an explanation of

the possible consequences for failing to appear or comply. 

¶5 A week later, the ICA mailed Gray a second notice 

accelerating the hearing from April 4, 2023, to March 31, 2023, and 

providing updated login information. That notice made no reference to 

Gray’s obligations to file evidence and appear, or the possible 

consequences for failing to appear or comply. The notice simply provided 

the new date and time and instructions for the video conference platform. 

¶6 On March 9, 2023, counsel for the employer and the 

insurance company (collectively, Church) asked the ALJ to postpone the 

hearing so Gray could be deposed. The ALJ obliged and again reset the 

hearing. The ICA mailed Gray a third notice rescheduling the hearing for 

May 8, 2023. Again, the notice made no reference to Gray’s obligations to 

file evidence and appear, or the possible consequences for failing to 

appear or comply. 

¶7 Neither party submitted any proposed evidence before the

hearing. When Gray failed to appear for the hearing, Church moved to 

dismiss “as a result of [Gray]’s failure to show for the initial hearing and 

failure to submit any evidence in support of her request for continuing 

benefits.” The ALJ summarily granted the motion, making no inquiry into 

whether Church had deposed Gray or otherwise had contact with her. The 

entire proceeding lasted less than 90 seconds. 

¶8 The ALJ issued a written decision of dismissal, finding that

notice of the hearing had been mailed to Gray’s address on file, but Gray 

failed to appear or submit evidence. The ALJ concluded that Gray had 

abandoned her hearing request by virtue of her failure to comply with the 

applicable rules.

¶9 Gray then filed a hand-written letter that the ALJ treated as a 

timely request for administrative review. Gray wrote that she “did not 

receive a time for the hearing” and described the medical condition of her 

knees and how the accident affected her health. Gray ended the letter by 

stating that she “did not know if [she] should send all [her] records from 

Fast Med from this injury.”

¶10 The ALJ issued a decision upon review affirming the

dismissal, finding it was supported by the evidence. The ALJ found that 

the three hearing notices had specified dates and times, had been mailed 
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

4

to Gray, and had not been returned as undeliverable. As such, the ALJ 

confirmed that Gray had abandoned her hearing request. 

¶11 Gray seeks relief through this statutory special action. 

DISCUSSION

¶12 We address two issues: (1) whether we should dismiss

Gray’s appeal because her opening brief violates Rule 13 of the Arizona 

Rules of Civil Appellate Procedure (ARCAP); and, more importantly, (2)

whether the ALJ abused her discretion by affirming the dismissal of 

Gray’s hearing request after receipt of Gray’s letter. In addressing these 

issues, we are mindful that ICA hearings are different than other

adversarial proceedings: “Their purpose . . . really remains the 

humanitarian and compassionate one of aiding and compensating the 

injured worker.” Gordon v. Indus. Comm’n, 23 Ariz. App. 457, 460 (1975).

I. Failure to Comply with ARCAP 13

¶13 Gray, who is unrepresented, filed a one-page “opening 

brief” in the form of a letter. Church asks us to dismiss Gray’s appeal 

because the opening brief does not contain a statement of facts, a 

statement of issues, or argument with legal citations. See ARCAP 13.

Though we agree that Gray’s brief is deficient, we can discern her 

argument. In the exercise of our discretion, we will decide the appeal on 

the merits. See Clemens v. Clark, 101 Ariz. 413, 414 (1966).

II. Dismissal Sanction

¶14 We now turn to the second question: did the ALJ abuse her 

discretion by affirming the dismissal of Gray’s hearing request after 

receiving her letter alleging lack of notice? An ALJ abuses her discretion if, 

in the process of reaching a discretionary decision, she commits legal 

error, fails to consider the evidence, or acts without substantial 

evidentiary support. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455–56 

(1982). An ALJ’s failure to consider applicable factors also constitutes an 

abuse of discretion. Cf. State v. Palmer, __ Ariz. __, __, 546 P.3d 101, 104–05, 

¶¶ 11–16 (2024) (reversing counsel-disqualification ruling because court 

failed to consider relevant factors, thereby preventing meaningful review). 

Gray was required to appear at the hearing and file her medical and 

non-medical evidence in advance. See A.A.C. R20-5-149(A); A.A.C. 

R20-5-155; Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977). The ALJ 

had discretion to dismiss her hearing request as a sanction for her total 

failure to fulfill those obligations. See A.A.C. R20-5-157(A); King v. Indus. 
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

5

Comm’n, 160 Ariz. 161, 163 (App. 1989). Though we cannot say that the 

ALJ exceeded her discretion here, we note that dismissal “is harsh and not 

to be invoked except under extreme circumstances”—it ordinarily is best 

to decide a workers’ compensation request “upon its merits.” King, 160 

Ariz. at 164 (citations omitted); see also J-R Const. Co. v. Paddock Pool Const. 

Co., 128 Ariz. 343, 344–45 (App. 1981) (holding that under civil sanction 

rule, a court’s discretion “is more limited . . . where the ultimate sanctions 

of dismissal or entry of default judgment are involved”). Accordingly, we 

urge ALJs to make reasonable inquiry into a claimant’s failure to appear 

before ordering dismissal.

¶15 Though ALJs are not bound by “technical or formal rules of 

procedure,” they should conduct workers’ compensation proceedings to 

“achieve substantial justice.” A.R.S. § 23-941(F); see also Ohlmaier v. Indus. 

Comm’n, 161 Ariz. 113, 117 (1989). Substantial justice (and efficiency) is 

well-served by inquiry into a claimant’s sanctionable conduct before

entering a case-dispositive order. That is particularly the case when, as 

here, an absent pro per claimant was not directly told the consequences of 

failing to appear or what evidence to provide, the hearing was 

rescheduled several times, and opposing counsel potentially had relevant 

information. See Dynometrics Inc. v. Ariz. Dep’t of Econ. Sec., __ Ariz. __, 

¶ 27, 547 P.3d 1068, 1074–75 (App. 2024) (holding that in unemployment 

benefits cases, ALJs “must actively elicit evidence when necessary to 

create an adequately developed record” upon which to make an informed 

decision); Coulter v. Indus. Comm’n., 198 Ariz. 384, 389, ¶ 23 (App. 2000) 

(concluding that ALJ abused his discretion by excluding a doctor’s report 

without considering “whether its admission would be consistent with 

substantial justice”). But though it may be best practice for an ALJ to 

inquire into the circumstances of a claimant’s failure to appear, no 

authority requires her to do so. Accordingly, we cannot say that the ALJ 

abused her discretion by ordering dismissal as a sanction for Gray’s 

failure to participate. 

¶16 But the ALJ abused her discretion by summarily denying 

Gray’s request for relief from the dismissal sanction without further 

inquiry. “If a party shows good cause, a presiding [ALJ] or the 

Commission may relieve a party of sanctions imposed.” A.A.C. 

R20-5-157(B). “Good cause” warranting relief from a sanction first 

requires a claimant to explain her failure to appear. See Brown v. Indus. 

Comm’n of Ariz., 154 Ariz. 252, 254 (App. 1987) (construing A.A.C. 

R20-5-157’s predecessor). The claimant must show that the failure was due 

to reasons outside her control, or was the result of excusable neglect—that 

is, the claimant must have acted as a reasonably prudent person would in
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

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the same circumstances. Cf. Maldonado v. Ariz. Dep’t of Econ. Sec., 182 Ariz. 

476, 478 (App. 1994); Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 

1993). Further, the ALJ must consider other factors: “(1) whether or not 

there is a pattern of failure to cooperate, e.g., [a] claimant’s failure to 

answer interrogatories and appear for a deposition . . .; (2) whether or not 

counsel acted with due diligence, e.g., [a] failure to make any attempt to 

obtain the claimant . . .; (3) whether or not there is some evidence 

presented to support the claimant’s case, e.g., the absence of supporting 

medical evidence . . .; and (4) whether or not the employer/carrier has 

suffered prejudice, e.g., [a] complete frustration of discovery and 

cross-examination.” Brown, 154 Ariz. at 254. “The procedural context is 

also relevant . . . .” Id.

¶17 There is no support in this record demonstrating that the 

ALJ considered the foregoing factors or developed an adequate record to 

do so. In her letter, Gray provided a colorable explanation of good cause 

for her failure to appear: she “did not receive a time for the hearing.” She 

also indicated that she did not understand whether she had to file her 

medical records before the hearing. At that point, the ALJ was required to 

consider the other factors relevant to determining whether good cause

exists. See id. And here, where the hearing was rescheduled multiple 

times, the hearing notices did not specify the potential consequences of 

noncompliance with the rules, and Gray was not represented by counsel, 

the ALJ was obligated to hold a hearing to develop evidence regarding

Gray’s failure to participate. Using such a hearing, the ALJ could have

developed an adequate record to apply the additional factors relevant to 

good cause—including whether Church actually attempted to depose 

Gray and, if so, whether Gray cooperated. See id.; cf. Palmer, __ Ariz. __, __, 

546 P.3d at 104–05, ¶¶ 11–16. By not doing so, the ALJ abused her 

discretion.
GRAY v. COURTYARD TOWERS DBA/CHURCH MUTUAL

Opinion of the Court

7

CONCLUSION

¶18 The ALJ abused her discretion by denying Gray’s request for 

administrative review on an inadequate record. We remand for the ALJ to 

hold a hearing to determine whether there is good cause to relieve Gray 

from the dismissal sanction, and to conduct all further proceedings that 

may be necessary.