Banner Health v. Stauffer ( 2014 )


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  •                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 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
    BANNER HEALTH, Petitioner Employer,
    BANNER HEALTH RISK MANAGEMENT, Petitioner Carrier,
    v.
    THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
    ADRIAN STAUFFER, Respondent Employee.
    No. 1 CA-IC 13-0057
    FILED 06-26-2014
    Special Action - Industrial Commission
    ICA Claim Nos. 20120-870283*, 20130-420167**
    Carrier Claim No. 157849*, **
    Allen B. Shayo, Administrative Law Judge
    AWARD AFFIRMED
    COUNSEL
    Jardine, Baker, Hickman & Houston, PLLC, Phoenix
    By Stephen C. Baker, John E. Drazkowski
    Counsel for Petitioners Employer and Carrier
    Industrial Commission of Arizona, Phoenix
    By Andrew F. Wade
    Counsel for Respondent
    Dennis Kavanaugh, P.C., Mesa
    By Dennis P. Kavanaugh
    Co-Counsel for Respondent Employee
    Toby Zimbalist Attorney at Law, Phoenix
    By Toby Zimbalist
    Co-Counsel for Respondent Employee
    MEMORANDUM DECISION
    Presiding Judge Kenton D. Jones delivered the decision of the Court, in
    which Judge Margaret H. Downie and Judge Donn Kessler joined.
    J O N E S, Judge:
    ¶1           This is a special action review of an Industrial Commission
    of Arizona (ICA) award and decision upon review for a compensable
    claim. One issue is presented on appeal: whether the Administrative Law
    Judge (ALJ) erred by excusing the respondent employee’s (claimant)
    untimely hearing request. Because we find the evidence of record
    reasonably supports the ALJ’s award, we affirm.
    JURISDICTION AND STANDARD OF REVIEW
    ¶2             We have jurisdiction pursuant to Arizona Revised Statutes
    (A.R.S.) sections 12-120.21(A)(2) (2014), 1 23-951(A) (2014), and Arizona
    Rules of Procedure for Special Actions 10. 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 of Ariz., 
    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 of
    Ariz., 
    202 Ariz. 102
    , 105, ¶ 16, 
    41 P.3d 640
    , 643 (App. 2002).
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    2
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    PROCEDURAL AND FACTUAL HISTORY
    ¶3            The self-insured petitioner employer, Banner Health
    (Banner), employed claimant as a registered nurse in “Women and Infant
    Services.” On March 13, 2012, claimant was assisting a morbidly obese
    patient into bed, when the patient’s legs gave way and claimant, “ended
    up taking her weight.” Claimant experienced an immediate onset of
    “horrible stabbing pain in [the] lower right groin area.” She self-treated
    and returned to work two days later. Due to the pain she experienced
    throughout the day and at her senior manager’s direction, claimant filed
    an incident report with the hospital that same day. On March 18, 2012,
    claimant developed rectal bleeding, had increased pain, and went to an
    urgent care facility. The urgent care facility sent claimant to the
    emergency room where she had a CT scan without contrast and a rectal
    exam performed by a physician assistant. These procedures led the
    physician assistant to believe the rectal bleeding may have been caused by
    “hemorrhoids that had burst” from moving the patient, and urged her to
    “follow up with a surgeon.”
    ¶4            On March 19, 2012, claimant went to Banner Occupational
    Health where she completed a workers’ compensation claim. Claimant
    reported her injuries as a hernia and rectal bleeding, with rectal bleeding
    listed as her primary complaint. The report from this visit noted
    “moderate bulging of the right side of abdomen,” “an inguinal hernia is
    present on the right side and is reducible,” and diagnosed claimant with
    an “abdominal wall strain with reducible hernia.” On March 21, 2012, in
    response to her claim, Nellie Hayes, Banner’s workers’ compensation
    claims specialist, wrote to claimant in an “intent-to-deny letter:”
    After careful review of your claim your condition does not
    fall under Workers’ Compensation category. It was caused
    idiopathically (or from within one’s self). The injury was not
    caused specifically by your job.
    As a result, on April 3, 2012, Banner issued a “notice of claim status”
    (NCS) denying claimant’s claim for benefits. Claimant testified she did
    not immediately protest the denial because she believed, at that time, she
    had a hernia and understood the hernia claim was not compensable.
    Further, she stated she had no new evidence or differential diagnosis with
    which to protest the denial and, at that time, no doctor had yet told her
    that her conditions or symptoms were related to the March 13, 2012 work
    incident.
    3
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    ¶5            Prior to the April 3, 2012 denial, on March 19, 2012, at the
    behest of the physician assistant at Banner Occupational Health, claimant
    visited the emergency room a second time. On this trip, a CT scan with
    contrast was performed, which revealed an ovarian cyst. She was
    instructed to follow up with a general surgeon and a gynecologist. She
    first saw general surgeon David Balch, M.D., for her hernia. Dr. Balch told
    claimant he “did not appreciate a hernia,” but told her to see a
    gastrointestinal specialist for her rectal bleeding, “before we go any
    further.” Claimant then went to Dr. Padda for a colonoscopy, which
    confirmed she suffered internal bleeding hemorrhoids. She testified the
    rectal bleeding lasted 2.5 weeks.
    ¶6            On March 29, 2012, claimant saw gynecologist Frank Fara,
    M.D., who told her the ovarian cyst was not the cause of her groin pain.
    He referred claimant to Eric Feldman, M.D., a pain management specialist
    at The CORE Institute. 2 She saw Dr. Feldman on April 5, 2012, and he
    performed a lumbar x-ray and ordered a pelvic MRI, which was
    performed ten days later, “to further evaluate a tear of the proximal hip
    adductor or distal rectus abdominis muscles”. Claimant testified that she
    was never told the pelvic MRI was intended to check for a possible hip
    injury, but rather understood the doctors believed her injury was nerve
    related. The resulting pelvic MRI was “unremarkable,” and claimant then
    returned to Dr. Feldman, who performed an ultrasound guided “nerve
    block” pelvic injection that failed to provide any pain relief.
    ¶7             Claimant sought a second opinion from general surgeon
    Ping Wang, M.D. to determine if she had a hernia. Although Dr. Wang
    did not believe she had a hernia, he offered to perform exploratory
    surgery. On May 14, 2012, claimant saw another general surgeon, Conrad
    Ballecer, M.D., who believed claimant had a hernia and scheduled surgery
    to repair it. The day before the surgery, which took place on June 22, 2012,
    claimant received a phone call from his office explaining the surgery was
    “exploratory, possible hernia repair.” No hernia was found during the
    surgery. Dr. Ballecer called in a gynecologist for the surgery, whom
    claimant never saw personally, but who recommended claimant follow up
    with a gynecologist for possible pelvic congestion syndrome. When Dr.
    Fara was unavailable, claimant saw gynecologist Michael Bryan, M.D. Dr.
    Bryan recommended claimant either see an interventional radiologist to
    have her pelvic veins embolized or have a hysterectomy.
    2   The Center for Orthopedic Research and Education Institute.
    4
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    ¶8             Upon this recommendation, claimant saw a radiologist, had
    a venogram, and on August 1, 2012, had some inflamed pelvic veins
    embolized. Again, she obtained no pain relief. Claimant returned to Dr.
    Feldman who recommended physical therapy. After performing a full
    assessment, the physical therapist told claimant he believed she had a
    labral tear in her right hip and recommended she have a diagnostic MRI
    arthrogram; acting upon this advice, Claimant did have an MRI
    anthrogram ordered.
    ¶9             Claimant then saw Dr. Maddox on September 10, 2012, to
    obtain the MRI arthrogram results. Dr. Maddox stated there were two
    possible right hip diagnoses: iliopsoas tendinitis or a labral tear. Dr.
    Maddox first attempted conservative treatment, which was ultimately
    unsuccessful. He then operated on claimant’s right hip on October 19,
    2012, and repaired two labral tears as well as an overstretched
    ligament/tendon. Dr. Maddox informed claimant that the tears were
    consistent with her injury resulting from moving the patient. Claimant
    testified that since Dr. Maddox’s surgery, she has improved seventy to
    eighty percent.
    ¶10             Claimant also testified that after her initial visit to Dr.
    Maddox she contacted Banner’s workers’ compensation department to
    inquire as to how to reopen her initial claim and was told to file an appeal
    at the ICA. On September 20, 2012, claimant filed a Petition to Reopen her
    March 13, 2012 industrial injury claim. The ALJ treated the petition as an
    untimely hearing request of Banner’s April 3, 2012 NCS, which denied her
    initial claim. 3 In addition, claimant filed a second worker’s report of
    injury for the March 13, 2012 injury date, and reported a right hip injury.
    Banner denied this second claim, claimant protested, and the ALJ
    consolidated the two claims for hearing.
    ¶11          The ALJ held one hearing and heard testimony from
    claimant and Ms. Hayes. Both parties filed post-hearing memoranda, and
    the ALJ thereafter entered an award for a compensable claim on the initial
    claim and denied her second claim as moot. The ALJ resolved all conflicts
    3The legislature has precluded the reopening of denied claims. Compare
    Gerhardt v. Indus. Comm’n of Ariz., 
    181 Ariz. 215
    , 
    889 P.2d 8
    (App. 1994),
    with A.R.S. § 23-1061 (H), and 2008 Ariz. Sess. Laws, ch. 169, § 2 (2nd Reg.
    Sess.).
    5
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    in the evidence in favor of claimant, specifically found her credible, and
    concluded:
    Applicant’s late filing of the protest of the denial of her claim
    is hereby excused, pursuant to A.R.S. § 23-947(B)(2) [sic], in
    that Applicant justifiably relied on the representations of Ms.
    Hayes, the representative of Defendant Employer, that her
    claim was being denied pursuant to relevant provisions of
    Arizona law regarding hernia claims, and that Applicant
    had no basis to doubt these representations until after the 90
    day protest period had elapsed.
    Banner timely requested administrative review, and the ALJ summarily
    affirmed the award. Banner next brought this appeal.
    DISCUSSION
    ¶12            A hearing request must be filed within ninety days after an
    NCS is sent. A.R.S. § 23-947(A). In this case, the NCS denying claimant’s
    workers’ compensation claim was sent on April 3, 2012, meaning a
    hearing request had to be filed by July 2, 2012. Claimant’s hearing
    request, however, was not filed until September 20, 2012, after claimant
    received the results of her MRI arthrogram from Dr. Maddox. In order to
    prevent her claim from being dismissed for lack of jurisdiction, claimant
    had to establish one of the statutory “excuses” delineated within A.R.S.
    § 23-947(B). 4
    ¶13          The ALJ found claimant had established justifiable reliance
    pursuant to A.R.S. § 23-947(B)(1). The statute provides in pertinent part:
    B. As used in this section, “filed” means that the request for
    a hearing is in the possession of the commission. Failure to
    file with the commission within the required time by a party
    means that the determination by the commission, insurance
    carrier or self-insuring employer is final and res judicata to
    4      Both the ICA and this Court are prohibited from excusing untimely
    hearing requests except for situations specifically enumerated in A.R.S.
    § 23-947(B). See Roman v. Ariz. Dept. of Econ. Sec., 
    130 Ariz. 581
    , 584, 
    637 P.2d 1084
    , 1087 (App. 1981).
    6
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    all parties. The industrial commission or any court shall not
    excuse a late filing unless any of the following applies:
    1. The person to whom the notice is sent does not request a
    hearing because of justifiable reliance on a representation by
    the commission, employer or carrier. In this paragraph,
    “justifiable reliance” means that the person to whom the
    notice is sent has made reasonably diligent efforts to verify
    the representation, regardless of whether the representation
    is made pursuant to statutory or other authority.
    ¶14            Banner argues the ALJ erred by finding claimant justifiably
    relied upon Ms. Hayes’ representations that her claim was not
    compensable when she failed to timely protest the April 3, 2012 NCS.
    First, it asserts that, at a minimum, claimant was aware the injury had
    caused her to have bleeding hemorrhoids before the denial became final.
    Second, it argues there were references in the medical records that alluded
    to a potential hip injury prior to July 2, 2013.
    ¶15          With regard to the hemorrhoids, claimant testified the rectal
    bleeding resolved quickly, continuing for approximately 2.5 weeks
    following the March 13, 2012 injury, meaning it had resolved prior to
    Banner issuing the April 3, 2012 NCS. Moreover, except for the
    colonoscopy, there is no indication any treatment was required for the
    hemorrhoids or that the hemorrhoids were the cause of claimant’s pain.
    ¶16          With regard to the single reference in the April 5, 2012 CORE
    medical record of a “possible” hip condition, claimant testified that no
    medical provider mentioned a hip injury to her before she began physical
    therapy at Apex in August 2012, which was well after her time to file a
    request had lapsed. Further, she stated she had no reason to obtain her
    medical records during the extensive investigation and work up of her
    symptoms until Banner refused her second claim for benefits after Dr.
    Maddox’s diagnosis.
    ¶17            Claimant continued to seek medical advice and treatment
    toward the resolution of her ongoing pain for five months after Banner’s
    April 3, 2012 denial of her initial claim in an attempt to verify its original
    assumption claimant had sustained a non-compensable hernia. Although
    the possibility she had suffered a hernia was ruled out ten days before the
    April 3, 2012 NCS became final, no doctor was able to identify the source
    of her pain or attribute it to her work until after the time for filing a timely
    hearing request had lapsed.
    7
    BANNER HEALTH v. STAUFFER
    Decision of the Court
    ¶18            Under the unique factual circumstances found here, and our
    deference to the ALJ’s factual findings, we find claimant’s ongoing efforts
    to obtain a medical diagnosis of her industrial-related condition satisfied
    the statutorily mandated “reasonably diligent efforts to verify” Banner’s
    representation that her injury was non-compensable. See Janis v. Indus.
    Comm’n of Ariz., 
    111 Ariz. 362
    , 363, 
    529 P.2d 1179
    , 1180 (1974) (“The test is
    that if a claimant appears to have a meritorious position and the facts do
    not establish an excessive delay and the delay, itself, does not in some way
    prejudice the insurance carrier, the interest of justice require that the
    untimeliness of the filing be waived.”).
    CONCLUSION
    ¶19            Accordingly, we affirm the ALJ’s Award.
    :gsh
    8
    

Document Info

Docket Number: 1 CA-IC 13-0057

Filed Date: 6/26/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021