dissenting.
I dissent. First, special action jurisdiction should not have been granted by the majority because petitioner has an adequate remedy by appeal. Any reversal of an award by our court opens all issues de novo on remand to the Commission. Thus, outside of delay, there is no prejudice to the parties.
Second, the effect of the majority opinion is to amend the discovery rules of the Industrial Commission, granting to all petitioners the right to tape record the medical examination of the medical doctor. The power to make such a rule resides in the Industrial Commission and not in the courts.
The only issue properly before us should be whether or not the Administrative Law Judge (ALJ) abused his discretion in ordering that petitioner “is not entitled to the presence/use of a tape recorder” during Dr. Moczynski’s medical examination. The fact that other doctors do not mind being tape recorded is irrelevant to the issue.
In order to place the issue in proper perspective, the law must be stated. Article XVIII, Section 8, of the Arizona Constitution, directs the state legislature to enact a “Workmen’s Compensation Law.” In response, the legislature enacted the State Workers Compensation Act, A.R.S. § 23-901, et seq. The act designates the Industrial Commission as the regulatory agency to administer the act with “full power, jurisdiction and authority.” A.R.S. *243§ 23-107(A)(6). Additionally, the act authorizes the Commission to “formulate and adopt rules and regulations for effecting the purpose of this article.” A.R.S. § 23-107(A)(l). In accordance with this authority, the Commission has adopted a number of discovery rules, for example, Rules 4-13-142, 143, 144, 146, 147, 155. Rule 4-13-147 relates specifically to videotape recordings and motion pictures. It is the rule closest to addressing the tape recording of a physician’s medical examination issue. Subsection (E) specifically precludes the use of videotape recordings or motion pictures “of medical procedures performed by licensed physicians” as evidence.
All of the Commission discovery rules leave discretion in the AU to settle disputes. In the instant special action, that is exactly what the AU did: adjust a discovery dispute. In the light of the policy expressed by the Commission in Rule 4-13-147(E), and this court in Pedro v. Glenn, 8 Ariz.App. 332, 446 P.2d 31 (1968), did the AU abuse his discretion, where the doctor and respondent employer objected to petitioner’s tape recording the medical examination, in ordering that the medical examination not be tape recorded? I would hold that the AU did not abuse his discretion and affirm his order limiting discovery. For these reasons, I voted to decline jurisdiction of this special action.