What statutes and rules govern OSHA hearings at the Industrial Commission?
The Arizona Occupational Safety and Health Act of 1973 is contained in
A.R.S. §§ 23-401 through 23-433. Section 23-420 addresses hearing rights
and procedures.
Additional rules of procedure for ADOSH hearings are set forth in the Arizona Administrative
Code, R20-8-801 through
R20-8-829.
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What happens after a request for hearing has been submtited to the ICA?
After a request for hearing has been filed, the case is referred to the Administrative
Law Judge (ALJ) Division for determination. The case is assigned to an ALJ, who
usually schedules a hearing within 60 days. Notice of the time and place of hearing
is given to all parties.
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What is an ALJ?
ALJs are Arizona lawyers who have been members of the State Bar of Arizona for at
least five years. Their job is to conduct fair and impartial hearings. They rule
on procedural and legal issues that come up before and during the hearing. They
listen to testimony presented at the hearing, review the evidence in the file, apply
the applicable law, and issue written decisions on the issues presented to them.
The powers and duties of an ALJ include the authority to administer oaths, rule
upon admissibility of exhibits, regulate the course of the hearing, call and examine
witnesses, adjourn hearings, and issue appropriate orders for protection of trade
secrets.
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What is a prehearing conference?
A prehearing conference may be scheduled by the judge or on motion of one of the
parties for the purpose of considering matters that would tend to simplify or expedite
the proceedings. Most prehearing conferences are conducted by telephone. Your representative
may appear on your behalf unless the ALJ specifically requests your participation.
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What is discovery?
Discovery is the prehearing process of exchanging information. Discovery consists
of depositions (oral question-and-answer sessions), interrogatories (written questions)
and requests for production of documents. A party refusing to cooperate in the
discovery process may be required to pay reasonable attorneys' fees. Willful failure
to appear for a deposition, answer interrogatories, or produce documents may result
in dismissal of the case or an order precluding the introduction of testimony.
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Can an ALJ help the parties resolve their dispute without a formal hearing?
Settlement is encouraged at any stage of the proceedings. Upon request of a party,
a case can be transferred to an ALJ who will serve as a mediator. Mediation brings
the parties (and their representatives) together to talk about their issues without
the formality of a hearing. No witnesses or evidence is presented. The mediator
helps the parties communicate with one another and work toward a mutually acceptable
resolution of the issues. Mediation is confidential. If a settlement is not reached,
the case is returned to the ALJ assigned to conduct the hearing.
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Where will the hearing take place?
The hearing will either be in the county where the alleged violation occurred or
in such other place as selected by the ALJ.
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What happens if I fail to appear at the hearing?
Failure of the person requesting the hearing to appear is deemed to be an admission
of the validity of any citation, abatement period, or penalty issued or proposed,
and a waiver of all rights except the right to receive a copy of the decision and
to request review.
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Can I call witnesses to the hearing?
All parties are entitled to call witnesses at the hearing. The ALJ is authorized
to issue subpoenas for the attendance of witnesses and parties at the hearing.
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Who pays for the subpoenas?
The subpoenas are issued and mailed by the ICA without charge to the parties.
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Can I ask for documents, too?
The ALJ can also issue subpoenas for the production of reports, papers, contracts,
books, accounts and other documents that are relevant and material to the issues
in the case.
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What are the possible outcomes of a hearing?
An ALJ may affirm, reverse, or modify the disputed action and any penalty imposed.
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How soon after the hearing will the ALJ issue a decision?
The ALJ will issue a written decision usually 30-60 days after the last hearing.
Copies of the decision are sent to all interested parties.
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What if I disagree with the decision of the ALJ?
There is a statement at the end of the decision setting forth the review rights
of the parties. A party disagreeing with the decision of the ALJ has fifteen days
to file a request for review. The review is heard by the OSHA Review Board.
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What if I disagree with the decision of the Review Board?
A party disagreeing with the decision of the OSHA Review Board may filed an appeal
with the Arizona Court of Appeals.
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Do I have to have a lawyer in an OSHA Hearing?
Under A.R.S. § 23-429, an employer can designate a person or persons to represent
him or her in proceedings before an ALJ or the OSHA Review Board. This person does
not have to be a lawyer. However, the rules of the Arizona Supreme Court, Rule 31(a)(4)(G),
provide that an officer or other duly authorized agent of a corporate employer may
not charge a fee for the representation.
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May I retain an out of state lawyer to represent me?
Out of state lawyers must comply with Arizona Supreme Court Rule 38 in order to
represent a party in Arizona. An out of state lawyer must associate with a lawyer
who is a member in good standing of the State Bar of Arizona.
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Can I get legal advice from the Industrial Commission?
Industrial Commission employees are not permitted to give legal advice. If you want
a lawyer or to get legal advice, you can contact the Maricopa County Lawyer Referral
Service at 602-257-4434, or the Pima County Lawyer Referral at 520-623-4625. You
can also look in the Yellow Pages of your local telephone directory under Attorneys
or Lawyers.
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