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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CITY OF CASA GRANDE, Petitioner Employer, 

AZ MUNICIPAL RISK RETENTION POOL, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

PETER BENZING, Respondent Employee.

No. 1 CA-IC 20-0017 

Special Action - Industrial Commission

ICA Claim No. 20190-220066 

Carrier Claim No. BCLM WC000000073838 

The Honorable Paula R. Eaton, Administrative Law Judge

AFFIRMED

COUNSEL

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

By Stephen C. Baker

Counsel for Petitioner Employer/Carrier

FILED 12-22-2020
2 

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent

Taylor & Associates, P.L.L.C., Phoenix

By Thomas C. Whitley, Nicholas C. Whitley

Counsel for Employee

MEMORANDUM DECISION

Acting Presiding Judge David B. Gass delivered the decision of the Court, 

in which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.

G A S S, Judge:

¶1 This case concerns the ability of third-parties to attend 

hearings before the Industrial Commission of Arizona. The city of Casa 

Grande and the Arizona Municipal Risk Retention Pool (collectively, Casa 

Grande) appeal a Commission order allowing Senator Paul Boyer to attend 

Peter Benzing’s workers’ compensation hearings. Finding no abuse of 

discretion or legal error, we affirm the order.

FACTUAL AND PROCEDURAL HISTORY

¶2 Benzing worked as a Casa Grande firefighter for ten years. In 

2018, he was diagnosed with “an aggressive form of prostate cancer.” He 

filed a workers’ compensation claim alleging his cancer is an occupational 

disease. See A.R.S. § 23-901.01.B.2 (presumption certain cancers in 

firefighters “arise out of employment”). Casa Grande denied his claim. 

¶3 Benzing requested a hearing to challenge the denial. He then 

requested permission for a union representative and Boyer to attend the 

hearing. In a letter to the Commission’s Administrative Law Judge (ALJ), 

Benzing said he considered the union representative “a part of my extended 

family and would value his presence at my hearing.” 

¶4 Boyer is a cosponsor of two proposed amendments to § 23-

901.01. Benzing’s said he requested Boyer’s presence because: 

There are obvious problems with the way the law has been 

written and Mr. Boyer would only benefit from observing the 

legal process to better understand why the intention of HB 
CASA GRANDE/AZ v. BENZING

Decision of the Court

3 

2161 is getting dragged through the courts. He then can make 

an informed decision on how best to rewrite the bill so it can 

work as it was intended to. 

Benzing also gave Boyer full access to the claim file. See A.A.C. R20-5-108.C 

(claimant may authorize non-party access to a claim file). 

¶5 Casa Grande objected to Benzing’s request. Though Casa 

Grande accepted the benefit of “having the union representative present for 

moral support,” it saw no similar reason for Boyer’s presence at the hearing. 

Casa Grande further argued Boyer’s attendance “could be viewed as an 

improper attempt by the legislative branch to influence hearings at the 

Industrial Commission.” 

¶6 Counsel for Casa Grande concluded the opposition 

memorandum with the following concession: 

Therefore, I think the Administrative Law Judge is within her 

discretion to either allow the union representative or not to 

appear. In regard to Senator Boyer, I think it is also within the 

Administrative Law Judge’s discretion as to whether or not 

Senator Boyer can attend, but I think his presence, whether 

accurate or not, creates the potential sense for undue 

influence.

¶7 With no controlling statute or rule, the ALJ looked to an 

Attorney General opinion, which states, “[W]here the countervailing 

interests of confidentiality, privacy or the best interests of the state should 

be appropriately invoked to prevent inspection . . . the officer or custodian 

may refuse inspection [of claim files].” See Op. Ariz. Att’y Gen. I86-090, 1986 

WL 81279, at *4. The ALJ found “these same balancing factors should be 

applied when considering the attendance of non-parties at hearing.” 

¶8 Applying this balancing test, the ALJ noted Benzing “waived 

any privacy or confidentiality concerns regarding his personal employment 

or medical information.” And Casa Grande “raised no objection that relates 

to [its own] privacy or confidentiality interests.” The ALJ granted Benzing’s 

request after concluding Boyer’s “mere presence in the room does not 

constitute undue influence or the appearance of undue influence.” 

¶9 Casa Grande moved for review of the ALJ’s order, arguing

Boyer had “no identifiable interest . . . that would warrant allowing him to 

attend in detriment to [Casa Grande’s] privacy interest.” Casa Grande said, 

“[a]s a result of the adverse publicity generated by the Benzing case and 
CASA GRANDE/AZ v. BENZING

Decision of the Court

4 

others,” its first two expert witnesses withdrew from the case and “any 

other case involving [f]ire[f]ighters.” 

¶10 Citing the same Attorney General opinion used by the ALJ, 

Casa Grande invoked a privacy interest in its new expert witnesses’ 

“educational history, work history, salaries and fees for participating in 

[independent medical examinations].” It argued Boyer’s attendance at the 

hearing could “subject[] both experts to unwarranted public attention and 

forc[e] them out of the arena for testifying in [f]ire[f]ighter cases.” 

¶11 In response, Benzing argued the Attorney General’s opinion 

spoke only of the claimant’s privacy interests, which he voluntarily waived. 

Benzing also noted the information Casa Grande sought to protect is 

already publicly available because its experts have previously “created 

reports for, or testified in numerous cases.” 

¶12 The ALJ affirmed her prior order, finding “[a]dverse publicity 

or the acts of third parties do not constitute sufficient reason to preclude 

Senator Boyer from attending.” Casa Grande timely appealed. This court 

has jurisdiction under Article 6, Section 9, of the Arizona Constitution, and 

A.R.S. §§ 12-120.21.A.1, 23-951.A. 

ANALYSIS

¶13 “This court deferentially reviews factual findings of the ALJ, 

but independently reviews any legal conclusions.” Young v. Indus. Comm’n, 

204 Ariz. 267, 270, ¶ 14 (App. 2003); see also Janusz v. Ariz. Dep’t of Econ. Sec., 

157 Ariz. 504, 506 (App. 1988) (review of administrative agency decisions 

“is limited to determining whether the decision is supported by substantial 

evidence and is within the range of permissible agency dispositions.”) 

¶14 Casa Grande first argues no “statute, rule or regulation . . . 

allows anyone other than interested parties to attend a hearing over another 

party’s objection.” But Arizona law grants the ALJ broad discretion over 

hearing procedures. Subsection 23-941.F provides “[e]xcept as otherwise 

provided in this section and rules of procedure established by the 

[C]ommission, the administrative law judge . . . may conduct the hearing in 

any manner that will achieve substantial justice.” (Emphasis added.) Casa 

Grande cites no statute or rule prohibiting the attendance of third-parties at 

Commission hearings. Indeed, its initial opposition to Benzing’s request 

conceded the ALJ has “discretion as to whether or not Senator Boyer can 

attend.” 
CASA GRANDE/AZ v. BENZING

Decision of the Court

5 

¶15 Casa Grande next argues the ALJ failed to consider 

adequately the competing interests implicated by Boyer’s presence at the 

hearing. It essentially asks us to reweigh the evidence, which this court will 

not do. See, e.g., State v. Lee, 189 Ariz. 590, 603 (1997) (“an appellate court 

will not reweigh the evidence”); Janusz, 157 Ariz. at 506 (“we will examine 

the record to determine whether the decision was unreasonable . . . [but] we 

will not reweigh the evidence”); Merkens v. Fed. Ins. Co., 237 Ariz. 274, 279, 

¶ 24 (App. 2015) (“We will not reweigh evidence on appeal.”). 

¶16 Here, the ALJ sought to balance “the countervailing interests 

of confidentiality, privacy [and] the best interests of the state.” See Op. Ariz. 

Att’y Gen. I86-090, 1986 WL 81279, at *4. Contrary to Casa Grande’s 

arguments, reasonable evidence supports the ALJ’s order. 

¶17 Casa Grande presented no evidence, beyond mere 

speculation, Boyer’s presence would unduly influence, or appear to unduly 

influence, the ALJ’s ultimate decision on the merits of Benzing’s claim. Casa 

Grande also failed to provide any legal support for a purported privacy 

interest in its witnesses’ educational information and work history. But see 

id. at *6 (discussing a privacy interest in “details of the claimant’s workrelated injury or disability, the claimant’s medical history, [and] important 

facts concerning a claimant’s employment history”) (emphasis added). 

¶18 In contrast, Benzing waived his confidentiality and privacy 

interests and provided concrete reasons for granting Boyer access to the full 

claim file and inviting him to the hearing. And Casa Grande does not 

explain how Boyer’s presence will negatively impact its rights and interests 

while the attendance of Benzing’s union representative will not. 

¶19 In the absence of a statutory or regulatory prohibition, the 

Commission’s ALJs have broad discretion over hearing procedures. See

A.R.S. § 23-941.F. On this record, we find no abuse of that discretion. 

CONCLUSION

¶20 The ALJ’s order granting Boyer permission to attend 

Benzing’s hearing is affirmed.