Transit Management v. Industrial Commission

619 P.2d 745, 127 Ariz. 236, 1980 Ariz. App. LEXIS 602
CourtCourt of Appeals of Arizona
DecidedJuly 1, 1980
DocketNos. 1 CA-IC 2336, 1 CA-IC 2337
StatusPublished

This text of 619 P.2d 745 (Transit Management v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Transit Management v. Industrial Commission, 619 P.2d 745, 127 Ariz. 236, 1980 Ariz. App. LEXIS 602 (Ark. Ct. App. 1980).

Opinion

OPINION

OGG, Chief Judge.

This review of an Industrial Commission award involves two Special Action-Industrial Commission petitions. The first, brought by the carrier and employer, challenges the part of the award determining that the Commission properly permitted the claimant to change physicians. The second, brought by the claimant, challenged the part of the award determining that the carrier properly suspended his compensation. For purposes of this appeal, we consolidate the disposition of these petitions. We affirm the award permitting the claimant to change physicians and set aside the award permitting the carrier to suspend claimant’s industrial benefits.

The procedural background of these petitions and the evidence as to the substantive issues are as follows. The claimant, a bus driver for the employer, was injured in an industrial accident when an automobile hit his bus in the rear end. He sustained sprains to the right lumbar, lumbosacral, and cervical areas. The carrier accepted his workmen’s compensation claim and awarded medical benefits and temporary total compensation.

On the day of the accident, the claimant received treatment at a hospital emergency room. The attending physician referred him to the Tucson Clinic, where Drs. Heim and Simbari treated him with medication and physical therapy. After some three weeks of this regimen, Dr. Heim released him for regular work. He opined that the claimant’s continuing complaints of pain had no objective basis and were attributable to his overreacting and malingering.

Because of his dissatisfaction with Dr. Heim’s evaluation of his condition, on March 12, 1979, the claimant, acting in his own behalf, presented a written request to the Industrial Commission for permission to change physicians. The alternative physician, Dr. Marquez, submitted a letter confirming his willingness to treat the claimant.

On March 14, 1979, prior to the Commission’s action on this request, the claimant received a telephone call from an agent of the carrier informing him that it had scheduled an independent medical examination with a Dr. Silver on March 16, 1979. He testified that although he knew the carrier was statutorily empowered to request that he attend an independent medical examination and his benefits could be suspended as a sanction for non-attendance, he believed that his earlier request to the Commission for permission to change physicians took priority over the carrier’s request. He consequently informed the caller that he would not attend a medical examination until the Commission acted on his request. He failed to attend the scheduled examination.

On March 21, 1979, based on Dr. Heim’s release of the claimant to regular work status, the carrier issued a notice of claim status changing the claimant’s compensation from temporary total to temporary partial. On that same day, it issued a notice suspending the claimant’s compensation for his refusal to submit to the scheduled medical examination.

On April 9, 1979, the Commission approved the request to change physicians. The carrier timely requested a hearing on this action. The claimant then timely requested a hearing on the notice suspending his compensation.

The Commission’s hearing division conjointly processed the requests and scheduled one hearing for September 12, 1979. On July 31, 1979, the hearing officer convened an informal conference at which the parties agreed that the issues in controversy were the Commission’s approval of the change of physicians and the carrier’s suspension of benefits. During this conference, the hearing officer informed the claimant of his right to counsel and urged him to obtain representation, but the claimant insisted that he intended to represent himself. The hearing officer also instructed the claimant to attend a rescheduled independent medi[238]*238cal examination, which he did on August 21, 1979.

Because he was emotionally distraught, the claimant could not appear at the hearing on September 12th. It was rescheduled for September 19th. On or about September 17th, the claimant retained counsel, who contacted the hearing officer on September 17th to request that the rescheduled hearing be continued. The hearing officer denied this request.

At the hearing, the claimant’s counsel renewed his request for continuance. He reiterated that the claimant wanted Dr. Marquez to appear.1 Finally, he requested permission to make an offer of proof as to the claimant’s psychological condition and its relationship to the industrial accident. The hearing officer denied all requests.

The award determined that both the Commission’s approval of the change of physicians and the carrier’s suspension of benefits were proper. The carrier and employer requested review of the award as to the change of physicians. The claimant requested review as to the suspension. The hearing officer affirmed the award as to both determinations. On January 17, 1980, the carrier and employer filed a Special Action-Industrial Commission petition. On January 18, 1980, the claimant filed a Special Action-Industrial Commission petition. The respective notices of appearance failed to request affirmative relief. See Special Actions Rules of Procedure, rule 10(f). The carrier and employer’s opening brief challenged only the validity of the change of physicians. The claimant’s opening brief challenged only the validity of the suspension. None of the parties moved to consolidate the petitions.

The first substantive issue concerns the Commission’s approval of the claimant’s request to change physicians. Although the request relied on A.R.S. § 23-1070(E), this provision is part of a special statutory scheme intended to apply exclusively to employers who directly provide medical care benefits to their employees. See Arizona Public Service Co. v. Industrial Commission, 27 Ariz.App. 369, 555 P.2d 126 (1976). Because neither the Tucson Clinic nor the treating physicians had any relationship with the claimant’s employer, A.R.S. § 23-1070(E) is inapplicable.

A.R.S. § 23-1071(B) provides that “[n]o employee may change doctors without the written authorization of the insurance carrier, the commission or the attending physician.” It is undisputed that the claimant sought and received the required written permission from the Commission.

Relying on A.R.S. § 23-1070(E) and cases interpreting it, e.g., Capitol Foundry v. Industrial Commission, 117 Ariz. 37, 570 P.2d 808 (App.1977); Kennecott Copper Corp. v. Industrial Commission, 115 Ariz. 184, 564 P.2d 407 (1977); and Arizona Public Service Company v. Industrial Commission, the carrier and employer contend that the Commission failed to conform to the standard governing authorization of changes of physicians. The analogy to A.R.S.

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Related

Arizona Public Service Co. v. Industrial Commission
555 P.2d 126 (Court of Appeals of Arizona, 1976)
Kennecott Copper Corp. v. Industrial Commission
564 P.2d 407 (Court of Appeals of Arizona, 1977)
Capitol Foundry v. Industrial Commission
570 P.2d 808 (Court of Appeals of Arizona, 1977)

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Bluebook (online)
619 P.2d 745, 127 Ariz. 236, 1980 Ariz. App. LEXIS 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transit-management-v-industrial-commission-arizctapp-1980.