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Rosarita Mexican Foods v. Industrial Commission of Arizona3/27/2001
gan v. American Express Travel Related Serv. Co., 185 Ariz. 93, 99, 912 P.2d 1322, 1328 (App. 1995). This objective is best served by granting the ALJ discretion to order reasonable and needed investigative and diagnostic tests at the expense of the employer or its carrier if the tests are causally related to the employee's injury. Moreover, we are mindful that even if the ALJ had issued an award closing the claim, Tapia would have been entitled to undergo the myelogram CT scan at Rosarita's expense. See A.R.S. ยง 23-1061(H) (Supp. 2000) ("A claim shall not be reopened solely for additional diagnostic or investigative medical test, but expenses for any reasonable and necessary diagnostic or investigative tests that are causally related to the injury shall be paid by the employer or the employer's insurance carrier."). If the scan demonstrated that Tapia's condition was non-stationary, he could then have reopened his claim and secured benefits. Id. We do not discern any reason to require Tapia to obtain his scan after an adverse award and possibly petition to reopen his claim rather than allowing him to undergo the scan at Rosarita's expense before the ALJ determines the status of his condition. Thus, we hold that the ALJ did not err by awarding the myelogram CT scan without proof that Tapia's condition is medically stationary.
2. Non-Diagnostic and Non-Investigative Medical Benefits
Rosarita next argues that because Tapia protested the Notice of Claim Status terminating benefits, he was obligated to prove that his condition was non-stationary by presenting supportive medical evidence prior to the conclusion of the hearing. Because Tapia failed to do so, Rosarita argues, the ALJ erred in continuing benefits. We agree that the ALJ erred by continuing non-diagnostic and non-investigatory benefits.
Tapia placed the status of his condition at issue by submitting a Request for Hearing, which challenged the closure of his claim and contended that he was "entitled to temporary compensation and active medical treatment" beyond the closure date. See Stephens, 114 Ariz. at 94, 559 P.2d at 214 (claimant's expressed desire in Request for Hearing to prove a permanent disability placed the issue before the Commission). Thus, he bore the burden of proving at the hearing that his condition was non-stationary in order to receive a continuation of non-diagnostic and non-investigatory benefits. Id. As set forth previously, see 11-16 supra, Tapia did not sustain this burden. Although the ALJ was entitled to order the myelogram CT scan at Rosarita's expense before deciding the status of Tapia's condition, she erred by continuing non-diagnostic benefits to Tapia absent sufficient evidence that his condition was medically non-stationary. 114 Ariz. at 96, 559 P.2d at 216. For this reason, we must set aside the award.
CONCLUSION
For the foregoing reasons, we hold that the ALJ did not err by awarding the myelogram CT scan at Rosarita's expense. However, the ALJ erred by finding that Tapia's condition was medically non-stationary and by awarding non-diagnostic and non-investigatory benefits to him. We therefore set aside the award.
Ann A. Scott Timmer, Judge
CONCURRING:
Jefferson L. Lankford, Presiding Judge
Susan A. Ehrlich, Judge
Page 1 2 3 4 5 Arizona Personal Injury Attorneys
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