The Hearing Process 1

2 Notice of Claim Status Issued by Carrier Legally Binding Triggers Protest Period (usually 90 days)

Request for Hearing A party must file a written request for hearing with the Industrial Commission of Arizona (ICA). Request for Hearing must normally be filed within 90 days of mailing. 3

Request for Hearing Exceptions to 90 Day Rule: Sometimes protest periods are shorter than 90 days. Protest period may be extended if: 1)applicant justifiably relies on representation by the Commission, employer, or carrier, 2)requestor suffers from “insanity or legal incompetence,” or 3)requestor shows that the notice was not received. If request for hearing is not timely filed, the notice or award is final 4

CopperPoint Legal Division Cases are assigned to attorneys when a hearing date is set. CopperPoint attorneys represent CopperPoint and the policyholder at hearings before the ICA and on appeal at the Court of Appeals and Supreme Court. CopperPoint has attorneys located in Phoenix and Tucson. Hearings are also held in Flagstaff, Yuma, and Lake Havasu City. 5

Common Litigation Issues Compensability – Hernia claims – Heart claims – Psychiatric stress claims Toxic exposure claims Average Monthly Wage Temporary Compensation 6

Common Litigation Issues Disputed Benefits [A.R.S. § 1061(J)] Continuing Benefits Permanent Impairment Loss of Earning Capacity Re-Opening Rearrangement Bad Faith 7

ALJ Assignment The ICA assigns the request for hearing to an Administrative Law Judge (ALJ). The ALJ issues a Notice of Hearing, usually setting the hearing for 60 to 90 days from the date of the notice. The hearing is generally held in the county where the employee currently resides or resided at the time of the injury. 8

“Noticing” the ALJ An affidavit for change of ALJ may be filed by any interested party within 30 days after the Notice of Hearing is issued. 9

ALJ Flexibility ICA has its own rulemaking authority. Generally, ICA is not bound by the Arizona Rules of Evidence or the Arizona Rules of Civil Procedure. ICA must observe principles of justice and due process of law. 10

Voluntary Cancellation of Hearing Many disputes are settled prior to hearing. Occasionally, an applicant will withdraw a request for hearing after receiving advice from the ICA Ombudsman and/or the ALJ. 11

Dismissal of Request for Hearing ALJ may dismiss a request for hearing when the disputed issues have been resolved. ALJ has discretion to dismiss a request for hearing. – As a sanction for violating procedural rules such as a failure to appear at a hearing, attend a deposition, or answer interrogatories. – Where good cause is shown, the party may be relieved of the sanction. 12

Attorney File Work Up Preparation is the key to litigation success. Pre-hearing preparation may include: – Setting depositions – Sending interrogatories – Requesting medical records – Setting independent medical examinations – Submitting lay and medical documents – Requesting subpoenas for lay and expert witnesses – Performing legal research – Preparing appropriate motions – Analyzing case for settlement potential – Performing surveillance – Conducting telephonic medical conferences 13

The Hearing Process Court reporter present to record testimony. Testimony taken under oath. Hearings less formal than Superior Court. 14

Post Hearing Administrative Review ALJ issues a written award (Decision Upon Hearing) within days after last hearing. Any dissatisfied party may request administrative review. Same ALJ issues Decision Upon Review: affirms, modifies, or vacates Decision Upon Hearing 15

Appellate Review Process Appeals filed with the Court of Appeals within 30 days after decision upon review is issued Written Legal Briefs filed by parties – Oral Argument may be granted 3 Judge Panel at Court of Appeals issues memorandum decision or opinion Dissatisfied party can file a Petition for Review with Arizona Supreme Court – Petitions for Review rarely granted 16

The Employer’s Role Before Litigation Work with corporate counsel to establish sound hiring practices. Develop and follow sound injury-reporting procedures. Maintain comprehensive personnel files. Strictly adhere to posting requirements (potential civil liability for failure to do so). Work closely with loss control representatives to maintain safe work environment. 17

The Employer’s Role During Litigation Teamwork between employer and litigation attorney often crucial for success. – Preserve and produce relevant documents. – Be available for site visits. – Secure written statements from witnesses. – Be available for pre-hearing preparation. – Be available at hearing (often helpful even if employer will not testify). – Be receptive to settlement advice. 18

Key Themes Preparation is the key to litigation success. Teamwork between CopperPoint attorneys and employers crucial to positive outcomes. Sound legal advice can often prevent litigation before it occurs. CopperPoint attorneys are eager to answer your questions before, during, and after formal litigation. 19

Contact Information CopperPoint Legal Division: (602)