Dancing Sunshines Lounge v. Industrial Com'n of Arizona, 1
| Decision Date | 11 July 1985 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 149 Ariz. 484,720 P.2d 85 |
| Parties | DANCING SUNSHINES LOUNGE, Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Shelley R. Johns, Respondent Employee. 3224. |
| Court | Arizona Court of Appeals |
Where the respondent in a special action review of an Industrial Commission award fails to file an answering brief, and this court, in its discretion, treats the failure as a confession of reversible error, does the rule of law implicitly decided then become the law of the case? We answer the question in the affirmative, and set aside the award.
The facts necessary to our determination are as follows: On March 25, 1981, the respondent (claimant) injured her knee while working as a dancer at the Dancing Sunshines Lounge (petitioner). A claim for compensation was denied by the insurance carrier, and a hearing was timely requested. The primary issue at that hearing was whether the claimant was an employee of the petitioner, or an independent contractor. On May 28, 1982, the administrative law judge issued an award finding the claimant to be an employee. The petitioners subsequently sought review to this court.
On November 15, 1983, we set aside the award. (Dancing Sunshines Lounge v. Industrial Commission, 1 CA-IC 2868, Memorandum Decision [November 15, 1983]. Specifically, we noted that no answering brief had been filed in the matter, and applied the rule that--where a debatable issue is involved--a reviewing court may elect to treat the lack of an answering brief as a confession of error. Our decision did not directly address the merits of the issue presented, which was whether the administrative law judge correctly found the claimant to be an employee.
The matter then returned to the Industrial Commission for a hearing de novo. Prior to the hearing, the parties stipulated that all evidence previously submitted would be admissible at the new hearing. The only additional evidence presented was testimony by two individuals who had also worked as dancers for the petitioner.
On April 10, 1984, the administrative law judge ruled that the court of appeals' reversal did not constitute the law of the case on the issue of whether the claimant was an employee. He also found that the additional testimony received was merely cumulative and corroborative of the testimony introduced at the first hearing, and noted that "In the event it is decided that the concept of 'law of the case' does apply to this matter, then the applicant's claim should be dismissed." He concluded again that the claimant was an employee, and entitled to compensation.
We now review this matter for the second time. The critical question is whether the "law of the case" doctrine should apply where this court has reversed for failure to file an answering brief. In Employer's Mutual Liability Insurance Co. of Wisconsin v. Industrial Commission, 115 Ariz. 439, 565 P.2d 1300 (App.1977), we defined the "law of the case" doctrine as "a principle that if an appellate court has ruled upon a legal question and remanded for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case." 115 Ariz. at 441. Implicit in the proposition is the fact that the rule of law would bind the lower court prior to the subsequent appeal. This rule, however, must be tailored to fit the peculiar appellate framework of the Industrial Commission. In Commission appeals, our review is limited to affirming or setting aside the award, and where the award is set aside, the matter is returned to the Commission for a hearing de novo. King v. Alabam's Freight Co., 40 Ariz. 363, 12 P.2d 294 (1932). Accordingly, the "law of the case" doctrine will only apply to Industrial Commission matters if an appellate ruling is made and the administrative law judge, at the hearing de novo, is presented with facts "substantially identical" to those presented at the original hearing. Employer's Mutual Liability Insurance Co. of Wisconsin, supra, 115 Ariz. at 442, 565 P.2d 1300.
In the present case, our initial inquiry is whether a reversal based upon a failure to file an...
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Dancing Sunshines Lounge v. Industrial Com'n of Arizona
...setting aside an award made to Shelley Johns (claimant) by the Industrial Commission of Arizona. Dancing Sunshines Lounge et. al. v. Industrial Commission, 149 Ariz. 484, 720 P.2d 85 (App.1985). We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 a......