flagstaff/scf v. Bunch ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CITY OF FLAGSTAFF, Petitioner Employer,
SCF ARIZONA, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
RICK A. BUNCH, Respondent Employee.
No. 1 CA-IC 13-0054
FILED 07-29-2014
Special Action - Industrial Commission
ICA Claim No. 20072-560464
Carrier Claim No. 0730712
Allen B. Shayo, Administrative Law Judge
AWARD SET ASIDE
COUNSEL
SCF Arizona, Phoenix
By John W. Main
Counsel for Petitioners Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Taylor & Associates, PLLC, Phoenix
By Thomas C. Whitley
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
THOMPSON, Judge:
¶1 This is a special action review of an Industrial Commission
of Arizona (ICA) award and decision upon review awarding the
respondent employee (claimant) mileage expenses he incurred for travel
to receive medical treatment. One issue is presented on appeal: whether
the administrative law judge (ALJ) erred by awarding the claimant
mileage reimbursement for his travel from Flagstaff to Phoenix, when
medical treatment was available in Flagstaff. Because the evidence of
record did not establish that the claimant had to travel to Phoenix to
obtain treatment, we set aside the award.
JURISDICTION AND STANDARD OF REVIEW
¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) §§ 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona
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Rule of Procedure for Special Actions 10. 1 In reviewing findings and
awards of the ICA, we defer to the ALJ’s factual findings, but review
questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14,
63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most
favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).
PROCEDURAL AND FACTUAL HISTORY
¶3 The claimant lived in Flagstaff and performed maintenance
work at the petitioner employer’s, City of Flagstaff’s (Flagstaff’s),
wastewater treatment plant. On August 9, 2007, he sustained an
industrial neck and back strain. The claimant filed a workers’
compensation claim, which was accepted for benefits by the petitioner
carrier, SCF Arizona (SCF). The claimant received extensive conservative
treatment in Flagstaff from an orthopedic surgeon, a pain management
specialist, and a neurosurgeon.
¶4 The claimant’s claim was eventually closed with a 5%
unscheduled permanent partial impairment, no loss of earning capacity
1 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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(LEC), and a supportive care award. The supportive care award
provided:
Notice of Supportive Care issued 7/2/2010 is hereby
rescinded. Notice of Supportive Care issued 6/11/2010 is
hereby amended as follows: Supportive Care under the
management of Randall Scott, MD to include 4 office visits per
yr., 10 physical therapy sessions per yr., 1 diagnostic study per
yr., medications and up to 2 radiofrequency denervations per
yr. (performed by John Ledington, MD) Supportive care will
be reviewed annually and may be closed without notice if not
used within one year.
The claimant testified that after his claim closed, he continued to have the
same neck pain, a 7 or 8 on a scale of 10, but the only treatment he was
offered was the radiofrequency denervation.
¶5 Because of the claimant’s ongoing neck pain, his attorney
recommended a consultation with Daniel Lieberman, M.D., a Phoenix
neurosurgeon. The claimant discussed this recommendation with his
family practitioner, Dr. Scott, and obtained a referral to see Dr. Lieberman.
Dr. Lieberman examined the claimant and reported:
Assessment and Plan:
Rick has a right C6 radiculopathy and neck pain after C5/6
disc hernation. His history, and the absence of pathology at
any other level, strongly suggest this was due to his
industrial injury.
He has failed excellent conservative care, I’d recommend
ACDF at C5/6. The r/b/a were described to him in detail.
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He is medically fit for the procedure with routine
preoperative evaluation.
The claimant filed a petition to reopen and attached Dr. Lieberman’s
report. The petition eventually was granted, and the claimant underwent
the recommended surgery.
¶6 The claimant testified that following Dr. Lieberman’s
surgery, his residual neck pain is a 1 on a scale of 10, and he feels better
since surgery than he has at any other time since the industrial injury.
The claimant next filed for an A.R.S. § 23-1061(J) 2 hearing to request
reimbursement of his travel expenses from Flagstaff to Phoenix for Dr.
Lieberman’s treatment. The claim was denied for benefits, and the matter
proceeded to an ICA hearing.
¶7 The ALJ held one hearing for testimony from the claimant.
He then entered an award granting the mileage reimbursement (Award).
SCF timely requested administrative review, but the ALJ summarily
affirmed the Award. SCF next brought this appeal.
2Section 23-1061(J) provides that a claimant may request an investigation
by the ICA into the payment of benefits, which the claimant believes that
he is owed but has not been paid.
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DISCUSSION
¶8 Under Arizona law, an industrially injured claimant is
entitled to receive payment of his medical expenses. See A.R.S. § 23-1021
(2013). These expenses include all reasonably required medical, surgical,
and hospital benefits. See A.R.S. § 23-1062(A) (1995). Whether a benefit is
reasonably required under the statute is a question for the ALJ. Regnier v.
Indus. Comm’n, 146 Ariz. 535, 539, 707 P.2d 333, 337 (App. 1985).
¶9 Section 23-1062(A) is silent as to travel expenses, and the
Arizona Workers’ Compensation Act typically is construed to exclude the
payment of travel expenses incurred while obtaining industrially related
medical treatment. Martinez v. Indus. Comm’n, 175 Ariz. 319, 321-22, 856
P.2d 1197, 1199-2000 (App. 1993); see also 5 Arthur Larson and Lex K.
Larson, Larson’s Workers’ Compensation Law § 94.03[2], at 94-48 (2013). 3 We
distinguished Martinez in Carr v. Industrial Commission, 197 Ariz. 164, 3
P.3d 1084 (App. 1999).
¶10 In Martinez, the claimant, lived, worked, was injured, and
received treatment in the Phoenix area. 175 Ariz. at 320-21, 856 P.2d at
3Arizona’s workers’ compensation statutes do provide for reimbursement
of reasonable travel expenses when a claimant must travel at the behest of
the employer, carrier, or ICA for medical examinations or treatment. See
A.R.S. § 23-1026 (A); Arizona Administrative Code (A.A.C.) R20-5-116(A).
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1198-99. The travel expenses for which that claimant sought
reimbursement were all incurred in the Phoenix metropolitan area. Id. In
Carr, the claimant lived in a rural area outside of Seligman, Arizona. 197
Ariz. at 165, ¶ 2, 3 P.3d at 1085. The closest available medical treatment
was in Flagstaff, Arizona, a 230 mile round trip from his home. Id. at 165-
66, ¶ 4, 3 P.3d at 1085-86. We concluded that without payment of travel
expenses, the claimant effectively was precluded from receiving the
medical benefits to which he was entitled under the Arizona Workers’
Compensation Act. Id. at 167, ¶ 12, 3 P.3d at 1087. For that reason, we
held “that an injured worker who must travel outside the area in which he
or she resides to receive treatment is entitled to reimbursement for travel
expenses.” Id. 4
¶11 The facts in this case fit neither Martinez nor Carr. Unlike
Martinez, the claimant did in fact travel outside of the area where he lived,
worked, and was injured to receive medical treatment. Unlike Carr, the
claimant did not live in a rural area with no access to medical care without
a long commute. In fact, the evidence of record established that there
4 We recently held that travel expenses are medical benefits for purposes
of the two year limitations period for a workers’ compensation claimant to
file a medical expense reimbursement request within the meaning of
A.R.S. §§ 23-1021, - 1062 (A), and – 1062.01(C). See Drew v. Indus. Comm’n,
232 Ariz. 36, 39, ¶ 11, 301 P.3d 202, 205 (App. 2013).
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were a number of medical specialists available to the claimant in the
Flagstaff area.
¶12 Although the ALJ in this case recognized the “must travel”
standard articulated in Carr, he did not apply it. The ALJ found that
“when an injured worker meets his burden of proving that travel out of
town is necessary to obtain medical care for the industrial injury, then the
defendant carrier is liable for travel expenses.” The evidence here
established that the claimant had received extensive conservative
treatment in Flagstaff, but despite that treatment, he had severe ongoing
pain. Based on these facts, we agree with the ALJ that it was reasonable
for the claimant to seek medical care from another physician. However,
because claimant failed to show that he couldn’t get such treatment in
Flagstaff, it was error to award him reimbursement for his travel expenses
to Phoenix as “necessary.”
¶13 A claimant typically has an unrestricted right to select a
treating physician. See generally Estes Corp. v. Indus. Comm’n, 23 Ariz. App.
370, 376, 533 P.2d 678, 684 (1975). Upon notice to the carrier, the claimant
may obtain reasonably required medical treatment without obtaining
prior carrier approval. See Lasiter v. Indus. Comm’n, 173 Ariz. 56, 61, 839
P.2d 1101, 1106 (1992). While courts in other states have interpreted their
medical benefits statutes to include travel expenses, we have not done so
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in Arizona. As we stated in Martinez, this is an issue more appropriately
directed to the legislature and we decline to take that step here. Id. at 322-
23, 856 P.2d at 1200-01.
¶14 Because the evidence of record did not establish that the
claimant had no choice but to travel to Phoenix to obtain medical
treatment, we set aside the award of mileage reimbursement.
:gsh
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