In Fry’s Food Stores, the claimant’s benefits were approved after the ALJ refused to allow the employer/carrier to perform a new IME. The claimant injured his groin while lifting a heavy object at work. He was diagnosed with an injury to his left testicle and fluid build-up. This led to the removal of the claimant’s left testicle, but he continued to experience pain. As such, the claimant sought relief from a pain management specialist. Following this, Respondents’ IME concluded that the claimant was medically stationary with no permanent impairment and could return to work without restrictions. Respondents terminated benefits based on this IME. The claimant objected and requested a hearing.
The claimant requested two continuances of the hearing, which delayed the hearing for nearly three months. Respondents only had the IME physician as a witness to testify. The claimant’s pain management physician testified that the claimant had reached MMI but had permanent impairment related to his work injury.
A day before the subsequent hearing for Respondents’ IME physician to testify, the IME physician informed the parties that he was unwilling to testify. Respondents then requested a continuance to evaluate a potential settlement. A month later, the ALJ requested an update and Respondents notified the ALJ that they had found another physician to conduct an IME.
The claimant filed an objection and sought a protective order from having to attend the IME. The ALJ entered an order in favor of the clamant. The ALJ expressed frustration with Respondents that they asked for a continuance to explore settlement only to find a new expert instead and believed Respondents had misled the court. Additionally, the ALJ was unimpressed with Respondents’ lack of notice to the court that it had found a new expert to conduct an IME until after the ALJ requested an update. Finally, the ALJ blamed Respondents for undue delay and denied its request for a new IME, citing timeliness under A.A.C. R20-5-141. Respondents appeal the ALJ’s order.
The Arizona Court of Appeals (the Court) set aside the ALJ’s Order and found that Respondents were not the source of the delay. Specifically, Respondents did not have knowledge that their IME would refuse to testify until a day before the subsequent hearing, and Respondents requested an IME with a new expert within a few weeks of that knowledge. The claimant had then filed for a protective order and the IME could not be performed until a ruling had been made on that motion, essentially tying Respondents’ hands from obtaining that evidence. Moreover, the claimant had requested two continuances initially, causing a three-month delay in the proceedings. The Court concluded that substantial justice had not been achieved as required by A.R.S. § 23-941(F) and remanded the case back to the ALJ.
Fry’s Food Stores of Ariz. Inc. v. Indus. Comm'n of Ariz., No. 1 CA-IC 22-0039, 2023 WL 3749841 (Ariz. Ct. App. June 1, 2023).
Want to know more? Contact Megan Bornmann at [email protected] or 877-259-5693.
