Velez v. Industrial Commission

848 P.2d 886, 174 Ariz. 307, 134 Ariz. Adv. Rep. 18, 1993 Ariz. App. LEXIS 41
CourtCourt of Appeals of Arizona
DecidedMarch 18, 1993
DocketNo. 1 CA-IC 91-0027
StatusPublished
Cited by1 cases

This text of 848 P.2d 886 (Velez 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
Velez v. Industrial Commission, 848 P.2d 886, 174 Ariz. 307, 134 Ariz. Adv. Rep. 18, 1993 Ariz. App. LEXIS 41 (Ark. Ct. App. 1993).

Opinion

OPINION

CLABORNE, Judge.

This is a review of an industrial commission award that upheld a unilateral suspension of benefits and denied coverage for unauthorized medical treatment received after the suspension. The main issues are whether the suspension was void and whether medical treatment should have been covered even if unauthorized. We hold that the suspension here was voidable, as opposed to void, and that the award properly excluded coverage for unauthorized medical treatment.

On January 20, 1983, petitioner employee (“the employee”), a street maintenance worker for the self-insured respondent employer, the City of Scottsdale (“City”), injured his lower back at work. One day later, the employee saw orthopedic surgeon Samuel S. Kaplan, M.D., apparently because the City had designated Dr. Kaplan as the treating physician under Ariz.Rev. Stat.Ann. (“A.R.S.”) section 23-1070(A) (1983).1

In his initial report, Dr. Kaplan indicated that his only positive finding was lower back tenderness and that the employee “hyperreacted” to the examination. He diagnosed an acute back sprain, placed the employee on non-work status, and recommended bed rest, medication, and moist heat. The employee was to return in one week.

In his next report of January 28, 1983, Dr. Kaplan indicated that the employee had called the night before to complain of increased pain but appeared the next day to request a release to work. Dr. Kaplan found nothing objective and released the employee to full-work status as of January 31, 1983. The employee was to return in one week for a “final visit.”

Dr. Kaplan last saw the employee on February 4, 1983. His report states:

Patient arrives in the office extremely hostile. “Why am I not better”, [sic] looking at my [sic] very defiantly. “You should have made me better. You are [309]*309not treating me”, [sic] Patient has been hostile since he has walked into the office on his first visit. I have told him literally that “I cannot wave a magic wand” and make him better. The patient really has no communication with me at all and I feel it is best that we terminate the doctor/patient relation. I will contact the City of Scottsdale re another referral.

On February 11, 1983, the City responded with two notices. First, it issued a notice of claim status accepting compensa-bility, saying that a check of $87.12 for compensation from January 21, 1983 was enclosed, but also changing the disability status to temporary partial disability effective January 31, 1983. Second, it issued a suspension notice and checked the box on the approved form to indicate that the employee had “refused to submit to, or obstructed, a medical examination.” (Emphasis added.) Both notices included standard protest notices. The employee did not protest either notice.

In March 1983, the employee initiated privately covered treatment with a chiropractor, who released the employee to regular work status in June 1983. The employee subsequently returned for treatment of episodic exacerbations, but he remained on regular work status for the next several years.

In late July 1989, the employee’s symptoms significantly worsened. He returned to the chiropractor, who took the employee off work and referred him to medical specialists for evaluation. The chiropractor and some of the examining physicians linked the worsened symptoms to the 1983 industrial injury.

On February 6, 1990, the employee filed a petition to reopen the 1983 injury claim. The industrial commission responded by notifying the employee that this claim had never been closed but rather had been suspended “for failure to attend an Independent Medical Evaluation.” It also advised the employee to contact the City for another medical evaluation.

The City subsequently scheduled an independent medical evaluation. The consultant concluded that the employee s current condition was unrelated to his “injury in 1980 [sic],...”

Relying on this report, the City issued a notice terminating the 1983 claim without permanent impairment effective April 1, 1990. The employee timely requested a hearing. The parties subsequently agreed to treat the February 1990 petition to reopen as a late protest of the February 1983 suspension notice.

The testimony at the hearing relevant to the issues on review was as follows. The employee denied obstructing the February 4, 1983 examination. He claimed to have merely complained of continuing pain and that Dr. Kaplan responded by practically “thro[wing] me out of the office____”

The City’s loss control manager testified that the City suspended the employee’s compensation because Dr. Kaplan reported that the employee’s hostility prevented a scheduled examination. She, however, conceded that this was probably a routine examination, not a scheduled independent medical examination. She also conceded that although the City uses other physicians, it did not attempt to schedule an appointment for the employee to see another physician.

Dr. Kaplan testified that he was the employee’s treating physician. After the January 28, 1983 examination, however, he did not recommend further treatment and had scheduled the last examination only to confirm the employee’s status after returning to regular work. Dr. Kaplan denied that he felt threatened by the employee. He instead felt “either I wasn’t communicating to the patient or the patient was in some way hostile to me and then I suggested] transferring care.” Finally, Dr. Kaplan had no opinion as to whether the January 1983 industrial injury was stationary when he last saw the employee.

The Administrative Law Judge (“A.L.J.”) then issued the award. Among other things, he found that “it is not believed defendant employer was acting without any reasonable basis in issuing a suspension notice” and that “while perhaps voida[310]*310ble had a timely REQUEST FOR HEARING been made it is not deemed that under appropriate law, “said notice was void ab initio____” He also found that the City was not responsible for unauthorized medical care after the suspension. The A.L.J. affirmed on administrative review. The employee then brought this special action.

On review, the employee first claims that the suspension was ineffective from the very beginning. He argues that the City lacked statutory authority unilaterally to suspend his benefits because A.R.S. subsection 23-1026(E), not subsection 23-1026(C), applied to this suspension. The City answers by arguing that the suspension was valid because subsection (C) and not (E) applied to this case.

In 1983, the statute governing suspensions provided:

A. An employee who may be entitled to compensation under this chapter shall submit himself for medical examination from time to time at a place reasonably convenient for the employee, if and when requested by the commission, the state compensation fund, his employer or the insurance carrier.
B. The request for the medical examination shall fix a time and place having regard to the convenience of the employee, his physical condition and ability to attend. The employee may have a physician present at the examination if procured and paid for by himself.
C.

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Bluebook (online)
848 P.2d 886, 174 Ariz. 307, 134 Ariz. Adv. Rep. 18, 1993 Ariz. App. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velez-v-industrial-commission-arizctapp-1993.