In Orosco, an IME was scheduled in February, 2021 to determine whether the claimant had reached medically stationary. When the claimant failed to attend the IME, his benefits were suspended. In April, the claimant’s attorney notified the Special Fund that his client never received the IME notice, requested the suspension of benefits be lifted, and provided the claimant’s father’s address for future notifications. The claimant filed his own request for a hearing requesting the benefits be reinstated. The IME was rescheduled for May and the claimant attended. As such, his benefits were reinstated as of the date of the IME.
The IME was rescheduled for May and the claimant attended. As such, his benefits were reinstated as of the date of the IME. A hearing was held in October, and that attending the IME in person violated the Governor’s Executive Order No. 2020-29. Under the Governor’s Order, a suspension of benefits could not be granted if an injured worker contested an in-person IME. The ALJ concluded that the claimant did not protest appearing in person, but rather had said he failed to show due to an alleged lack of notice of the IME.
The ALJ found the lack of notice argument invalid as the IME notice had been sent to his attorney and to the address that the claimant had used throughout the entire proceedings, his father’s address. The claimant argued at hearing that he lived on the streets but conceded he picked his mail up from his father’s house from time to time.
Finally, the ALJ faulted the claimant for failing to maintain contact with his attorney, as evidenced by the adjuster’s notes and testimony. The ALJ affirmed the suspension of benefits. The claimant then appealed to the Arizona Court of Appeals (the Court).
The claimant argued that the ALJ abused his discretion in suspending the benefits and that attending the IME in person violated the Governor’s Executive Order No. 2020-29. When benefits are suspended and the injured worker timely requests a hearing, as here, the Special Fund must make a prima facie showing of its right to suspend benefits. Garza v. Indus. Comm'n, 17 Ariz. App. 525, 530 (1972). The Court reasoned that the ALJ found the Special Fund made such a showing—the IME notice had been sent to the claimant's attorney in compliance with A.A.C. R20-5-158(A). Also, it was noted that the claimant received mail at the address listed on his claim form, which did not change during the relevant time period, and there was no evidence to support his claim that the notice had not been delivered to that address. Because the record supports the ALJ's findings, no abuse of discretion occurred, and the suspension of benefits was affirmed.
Orosco v. Indus. Comm'n of Ariz., No. 2 CA-IC 22-0002, 2023 WL 324614 (Ariz. Ct. App. Jan. 19, 2023).
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