An Arizona appellate court recently held, as a matter of law, that a workers’ compensation claimant who expressed an intention to record an independent medical examination (“IME”), in the absence of any prior communication about recording, had not committed a “wrongful act” constituting obstruction of the IME under A.R.S. § 23–1026(C). Accordingly, a workers’ compensation insurance carrier could not suspend the injured employee’s benefits for obstructing the IME [Kwietkauski v. Industrial Comm’n, 2012 Ariz. App. LEXIS 184 (Nov. 20, 2012)].
Claimant worked as a workers’ compensation claims adjuster. She claimed she sustained injuries to her back, hip, wrist and palm when she slipped and fell in her employer’s parking lot. The claim was accepted, but the carrier scheduled two IMEs. A physician refused to proceed when the claimant indicated that she planned to record the examination. The carrier notified the claimant that her benefits were being suspended because she had obstructed the IME. An ALJ affirmed the carrier’s decision to suspend benefits and the claimant appealed.
The appellate court held that the claimant did not commit a “wrongful act” by asserting her intention to use a tape recorder during her IME. Asserting her legal right to record the IME could not, as a matter of law, be considered “wrongful.” The court added that while an examining doctor was entitled to choose not to conduct IMEs that were recorded, the doctor’s policy or preference did not trump a workers’ compensation claimant’s right to record the IME. The carrier’s argument that claimant should have given prior notice of her intent to record fell on deaf ears as well. The carrier could not cite any authority for its contention.