Wildeman v. sofrita/hartford

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STEPHANIE KNIFFIN WILDEMAN, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SOFRITA L.L.C., Respondent Employer,

THE HARTFORD, Respondent Carrier.

No. 1 CA-IC 16-0026
FILED 1-4-2017

Special Action - Industrial Commission

ICA Claim No. 20160-390363
Carrier Claim No. Y67C10982
The Honorable Michael A. Mosesso, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Arizona Injury Law Group, PLLC, Phoenix
By Weston S. Montrose
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter, Jonathan Hauer
Counsel for Respondent ICA
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco (Retired) joined.

S W A N N, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review dismissing a hearing
request under A.R.S. § 23-1061(J). Because we find an abuse of discretion,
we set aside the award.

FACTS AND PROCEDURAL HISTORY

¶2 The claimant worked as a restaurant manager for the
respondent employer, Sofrita, LLC. On December 22, 2015, she slipped and
fell at work, injuring her back, neck, and shoulder. The claimant filed a
workers’ compensation claim, which was accepted for benefits. She began
receiving chiropractic treatment from Dr. Nicholas Schultz. When Dr.
Schultz recommended additional treatment sessions, the claimant
requested authorization from the respondent carrier, The Hartford
(“Hartford”). Hartford obtained a peer-to-peer review (“UR report”) of the
requested treatment and denied it. The UR report stated in pertinent part:

The request for certification of the medical service(s) listed
below has been reviewed . . . by a qualified peer clinical
reviewer identified below. The peer clinical reviewer
provided the opportunity for peer-to-peer review prior to
making a determination of the medical necessity and
appropriateness of the requested treatment.

Requested Services: Chiropractic treatment x 10 for the neck, low
back, and shoulder. . . .

Determination: non-certified

...

Reason for non-certification: At your request I have
reviewed the medical records pertaining to the above-
captioned claimant, at which time a preauthorization review
was performed for medical necessity.

2
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

History: The claimant is female and is 51 years of age. The injury
occurred dated 12/22/15, when she stepped on the back deck,
slipped, and slid down a ramp. The diagnosis is neck, low
back and shoulder pain. She has had medications and
chiropractic times 12. The most recent note dated 01/11/16, from
the chiropractor indicated that she was doing some light
housekeeping. Additional treatment was recommended. The
request is for chiropractic treatment x 10 for the neck, low
back, and shoulder.

Criteria: ODG Neck and Upper Back (Acute and Chronic)
Manipulation

Manipulation is recommended as an option. In limited existing
trials, cervical manipulation has fared equivocally with other
treatments, like mobilization, and may be a viable option for
patients with mechanical neck disorders. However, it would
not be advisable to use beyond 2–3 weeks if signs of objective
progress towards functional restoration are not demonstrated.
Further, several reports have, in rare instances, linked chiropractic
manipulation of the neck in patients 45 years of age and younger to
dissection or occlusion of the vertebral artery. The rarity of
cerebrovascular accidents makes any association unclear at this time
and difficult to study.

Conclusion: Peer to peer discussion has not been achieved
despite calls to the MD’s office. The history and
documentation do not objectively support the request for
continued chiropractic therapy. The clear objective
[evidence] of benefit, including functional improvement, has
not been submitted. There is no evidence that the claimant is
unable to continue her rehabilitation with an independent home
exercise program (HEP) at this time. The medical necessity of
this request has not been clearly documented. Recommend
non-certification.

(Emphases added.)

¶3 After denial of the recommended treatment, the claimant’s
attorney wrote to the ICA and requested an A.R.S. § 23-1061(J) investigation
and hearing “if necessary” into Hartford’s refusal to authorize the
additional chiropractic care. He attached Hartford’s UR report to his
request. The ICA claims department then wrote to Hartford’s claim
representative and requested a response to the claimant’s § 1061(J) request.

3
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

It also referred the request to the ALJ Division for a hearing. Hartford
responded that based on the UR report, additional chiropractic care was
“not medically appropriate,” and that “[i]n order to resolve this issue an
Independent Medical Exam” (“IME”) had been scheduled.

¶4 The ALJ next wrote to the claimant’s attorney and requested
“medical records and/or other records that support the [§] 1061(J)
petition.” The claimant’s attorney responded by attaching Hartford’s UR
report to confirm that Hartford “denied a benefit.” The ALJ replied that
Hartford’s denial of benefits did not establish that it owed the claimant
benefits. He wrote in part:

A medical record from a healthcare provider that
recommends treatment is evidence for a benefit owed and
thus a prima facie showing of such. Applicant is provided an
additional five (5) days to submit this supporting
documentation. If none is filed, the February 18, 2016
[§] 1061(J) request will be dismissed.

The claimant’s attorney responded by attaching the UR report, which he
explained established that a benefit owed had been denied.

¶5 The ALJ entered an award dismissing the claimant’s § 1061(J)
hearing request because she had failed to make a prima facie showing of a
benefit owed. The claimant timely requested administrative review
arguing that § 23-1061(J) requires only a medical report or other
documentation. The ALJ rejected the argument and affirmed the award.
The claimant next brought this appeal.

DISCUSSION

¶6 An industrially injured claimant is entitled to receive all
reasonably required medical, surgical and hospital benefits. See A.R.S.
§ 23-1062(A). The reasonable necessity of care is a medical question. See
generally, Bergstresser v. Indus. Comm’n, 118 Ariz. 155, 157 (1978). If a
claimant believes she is entitled to medical care which the carrier refuses to
provide, her recourse is to file a petition for investigation by the ICA under
A.R.S. § 23-1061(J), which is typically referred to as a “J” request.

¶7 Once a “J” request is filed, the ICA notifies the insurance
carrier, which has ten days to respond. See Arizona Workers’ Compensation
Handbook § 9.6.2.2, at 9-22 to -23 (Ray J. Davis, et al., eds., 1992 and Supp.
2016). If the matter cannot be resolved informally or no response is received

4
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

from the carrier, the issue is referred to the ALJ division for hearing within
sixty days. Id.; see also A.R.S. § 23-1061(J).

¶8 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 (App. 2002). In reviewing findings and awards of the ICA, we defer to
the ALJ’s factual finding, but review questions of law de novo. Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We review statutory
interpretation questions de novo. Hahn v. Indus. Comm'n, 227 Ariz. 72, 74,
¶ 5 (App. 2011). “If the statute's language is clear and unambiguous, we
give effect to that language and do not apply any other rule of statutory
construction.” Id. at ¶ 7.

¶9 A.R.S. § 23-1061(J) reads in relevant part:

The commission shall investigate and review any claim in
which it appears to the commission that the claimant has not
been granted the benefits to which such claimant is entitled.
If the commission determines that payment or denial of
compensation is improper in any way, it shall hold a hearing . . . .

We read this section to mean that when a denial of compensation was
facially improper, the commission should proceed immediately to a hearing
on the merits. Likewise, when no colorable argument appears from the
hearing request that a denial of compensation was improper, it need not
conduct a hearing. However, when it is unclear from the materials
accompanying a hearing request whether payment was properly denied,
the commission should hold a hearing to determine whether the denial was
proper.

¶10 In this case, the ALJ refused to hold a “J” hearing because he
found that the claimant had failed to make a prima facie showing of
entitlement to the denied chiropractic care. And the ALJ deemed the UR
report to be insufficient evidence of “a benefit owed” and required the
claimant to produce “a medical record from a healthcare provider that
recommends treatment.” But the UR report stated that chiropractic
treatments were “recommended as an option” for these types of injuries,
despite rejecting it for the claimant.

¶11 The UR report concluded that additional “manipulation” was
not medically necessary nor was it “advisable to use [manipulation] beyond
2–3 weeks if signs of objective progress towards functional restoration are

5
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

not demonstrated.” The report then recited a rare complication in patients
under “45 years of age,” as support for the denial of benefits.1

¶12 Here, the 51-year-old claimant is outside the “rare”
complication risk group — which the UR report acknowledges may not
even be a complication. The available facts demonstrate that one month
after the accident she made the request for additional treatment, and that
during that time she may have had functional improvement based on her
ability to perform “some light housekeeping.” Nevertheless, the UR report
determined that the claimant had not demonstrated that an alternative
treatment, “HEP,” was sufficient despite the treating doctor’s
recommendation for additional chiropractic treatments — and a lack of any
mention of HEP anywhere else in the record. We conclude that the faulty
reasoning of the UR report was sufficient evidence to warrant a “J” hearing.
The ALJ’s requests for additional medical documentation as a condition for
granting the hearing were duplicative and unnecessary. On these facts,
there is clearly a question of whether the denial was proper and the ALJ
abused his discretion by not conducting a hearing to determine if the
treatment was properly denied.

1 After the claimant requested a review of the award but before the
ALJ issued the decision upon review, the respondent carrier submitted an
IME, which supported its denial of benefits, and requested subpoenas of
two doctors to testify as experts in any hearing. “A presiding
administrative law judge’s award or decision . . . or award or decision upon
review . . . shall be based upon . . . [t]he record as it exists at the conclusion
of the hearings.” A.A.C R20-5-159. We think that in the case of a denial of
a hearing, the record on review of that denial should also be limited to the
record as it existed when the denial was issued. Therefore, we do not
consider the IME in our analysis. It is unclear whether the ALJ considered
the IME in his decision upon review, but his affirmation of the original
award did mention it. To the extent the ALJ relied on the IME or any of the
parties’ actions after the initial denial of claimant’s request for a hearing, it
was error.

6
 WILDEMAN v. SOFRITA/HARTFORD
Decision of the Court

CONCLUSION

¶13 For the foregoing reasons, we set aside the award.

AMY M. WOOD • Clerk of the Court
FILED: AA

7