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Naglieri v. The Indus. Comm'n of Arizona

Court of Appeals of Arizona, First Division

September 30, 2014

MICHAEL NAGLIERI, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SUN DEVIL AUTO PARTS, INC., Respondent Employer, WAUSAU BUSINESS INS. CO., Respondent Carrier

Special Action - Industrial Commission. ICA CLAIM NO. 20122-060071, CARRIER CLAIM WC197A36902. Margaret A. Fraser, Administrative Law Judge.

AWARD SET ASIDE.

Taylor & Associates, PLLC, Phoenix, By Dennis R. Kurth, Counsel for Petitioner.

Industrial Commission of Arizona, Phoenix, By Andrew F. Wade, Counsel for Respondent ICA.

Cross & Lieberman, P.A., Phoenix, By Donald L. Cross, Counsel for Respondents Employer and Carrier.

Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Patricia A. Orozco joined and Judge Samuel A. Thumma dissented.

OPINION

Page 728

[236 Ariz. 95] Randall M. Howe, Presiding Judge:

[¶1] This is a special action review of an Industrial Commission of Arizona (" ICA" ) award and decision upon review for a non-compensable claim. We set aside the award because the administrative law judge (" ALJ" ) erred in refusing to schedule an additional hearing to receive evidence alleging that a witness presented fraudulent testimony at the ICA hearing.

FACTUAL AND PROCEDURAL HISTORY

[¶2] Michael Naglieri worked as an automobile mechanic for Sun Devil Auto Parts, Inc. (" Sun Devil" ) in Fountain Hills, Arizona. Naglieri, a gun collector, had brought his 1919 Browning machine gun to work one day. Because work was slow that afternoon, Naglieri disassembled and cleaned his gun on top of his tool box in the center of the shop. He worked on the gun for about an hour, then the gun's drive rod came unhinged and shot into his right eye. Naglieri applied for workers' compensation benefits for his injuries under the Arizona Workers' Compensation Act (" the Act" ), but his claim was denied.

[¶3] Naglieri timely requested an ICA hearing to contest the denial. He alleged that he was injured in the course of his employment because his supervisors had allowed him to clean his gun at work. He testified at the ICA hearing that several Sun Devil employees witnessed him clean the gun, including store manager Stan Hartsock; assistant store manager Mark Meyer; and fellow employees Jason Grudier, Bob Schiel, and Patrick Quinslan. Naglieri also testified that Hartsock asked Naglieri questions while he cleaned the gun. Although Naglieri could not recall who was present at the time he was injured, he testified that fellow employee Adam Silva immediately came to his aid.

[¶4] Schiel testified that he was working that day, but did not witness Naglieri's injury. Although Schiel was aware that Naglieri had brought a gun to work, he did not know that Naglieri was working on it. Schiel testified that other employees also had brought guns to work to show their coworkers, but was unaware whether they had ever worked on their guns at the shop. He testified that store supervisor Montgomery Miller had told him that he had previously cleaned his guns at work.

[¶5] Grudier testified that Naglieri worked on his gun because business was slow that afternoon. Grudier agreed that Naglieri and other employees had brought guns to the shop and confirmed that Naglieri was working on his gun in full view of the others. He stated that other Sun Devil employees--including Hartsock, Meyer, and Silva--approached Naglieri to watch him clean the gun and asked Naglieri questions. Grudier left work before Naglieri was injured.

[¶6] Hartsock testified that he was unaware that Naglieri had a gun at work until after his injury, when Silva came into the front office saying, " Call 911." Hartsock stated that when business was slow, employees were supposed to " clean the shop, put away inventory, or go home." He acknowledged that employees were allowed to work on their

Page 729

[236 Ariz. 96] personal vehicles if they were off the clock, an invoice was written, and they paid for parts.

[¶7] Hartsock also testified that he was unaware that employees had brought guns to work and that employees had never asked permission to do so. He said that if he had seen an employee cleaning a gun, he would have told the employee to stop and sent the employee home. Hartsock admitted that Naglieri returned to work after his injury and was not disciplined for bringing the gun to work. He also admitted that he was unaware of any rule prohibiting employees from bringing guns to Sun Devil.

[¶8] Miller, Hartsock's supervisor, also testified. He supervised eight Sun Devil stores, including the Fountain Hills store where Naglieri worked. He stated that Sun Devil did not have a policy prohibiting employees from bringing guns to work, but employees would not be permitted to work on guns at the store without permission. Miller testified that employees " on the clock" had to engage in activities that benefited Sun Devil.

[¶9] The ALJ found that Naglieri's claim was noncompensable. The ALJ found, in pertinent part:

Upon a review of the totality of the evidence, it is determined that [Naglieri] and Jason Grudier were not credible. I do not believe that employees were allowed to work on guns at the workplace where the business was auto mechanics, or that supervisors and other employees watched [Naglieri] work on the gun while he was on the clock and did not tell him to stop. Any conflicts in the evidence or inferences to be drawn therefrom which may exist are resolved against [Naglieri].

[¶10] Naglieri timely requested administrative review of the ALJ's decision and moved for an additional evidentiary hearing. In his motion, Naglieri attached an affidavit from Meyer stating that Hartsock had told Meyer that he had not been truthful at the ICA hearing:

I Mark Meyer am the Assistant Manager and Service Assistant at Sun Devil Automotive.
I am writing to the Industrial Commission on behalf of Michael Naglieri and to tell you the truth about the events that happened on July 18, 2012, when Michael Naglieri had an accident at Sun Devil Auto and lost his right eye. Since I witnessed Michael working on the gun and was aware of it, I must clear my conscience and come forward to tell the truth.
Stan Hartsock was the Manager on Duty and he has admitted to me that he was not truthful at the Industrial Commission hearing for Michael Naglieri on December 5, 2012.
I Mark Meyer saw with my own eyes and admittedly know that Michael Naglieri working [sic] on his 1911 [sic] gun in the bay in the afternoon of July 18, 2012. Stan and myself knew what was taking place in the ...

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