Lasiter v. Industrial Com'n of Arizona

• Decision Date: 15 October 1992
• Docket Number: No. CV-90-0410-PR,CV-90-0410-PR
• Citation: 173 Ariz. 56,839 P.2d 1101
• Parties: Katherine LASITER, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Samaritan Health Services, Respondent Employer, Industrial Indemnity Company, Respondent Carrier.
• Court: Arizona Supreme Court

Page 1101

839 P.2d 1101

173 Ariz. 56

Katherine LASITER, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Samaritan Health Services, Respondent Employer, Industrial Indemnity Company, Respondent Carrier.

No. CV-90-0410-PR.

Supreme Court of Arizona, In Banc.

Oct. 15, 1992.

[173 Ariz. 57] Charles M. Wilmer, P.C. by Charles M. Wilmer, Phoenix, for petitioner.

Industrial Commission of Arizona by Anita R. Valainis, Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Donald L. Cross, J. Victor Stoffa, Phoenix, for respondent employer/carrier.

OPINION

FELDMAN, Chief Justice.

The question presented in this workers' compensation case is whether the notice requirement of A.R.S. § 23-1062(A) precludes an injured employee from receiving medical benefits for the care reasonably required as a result of an industrial injury because the employee did not notify the carrier that she was to receive specific medical care at a given time. We granted review to clarify the law on this issue of statewide importance. See Rule 23(c)(4), Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

A. The Initial Injury

Katherine Lasiter injured her back in the course of her employment in 1978. She submitted a claim for workers' compensation benefits to her employer's carrier, Industrial Indemnity Co. ("Industrial"). After Industrial denied the claim, Lasiter filed a request for a hearing with the Industrial Commission ("Commission"), and Industrial ultimately accepted the claim.

In May 1979, Lasiter was diagnosed with a spinal stenosis at L3-4 and a spondylolysis at L4-5, and was subjected to a decompression laminectomy bilaterally at L4-5 and L5-S1. In November 1979, she had a lumbar fusion, and in October 1980 she underwent debridement of the bone graft area.

On February 24, 1981, physicians at the Southwest Disability Evaluation Center diagnosed Lasiter as "probably essentially stationary," and Industrial terminated benefits. On February 24, 1982, an administrative law judge ("ALJ") found that Lasiter's injury was stationary and that she had suffered a twenty-five percent general disability. The parties stipulated that she had sustained no loss of earning capacity.

B. The First Reopening

On January 25, 1985, Lasiter filed a petition to reopen her claim, which Industrial denied. On March 12, Lasiter requested a hearing on the reopening. In June, R. Richard Maxwell, M.D., performed laminectomies at L4-5 and L5-S1 and another fusion at L4-5. Following a hearing, the ALJ ordered Lasiter's claim reopened on December 26, 1985, based on a finding that Lasiter had required additional medical treatment for her back as a result of her industrial injury and that her hypertension, but not her ulcer problem, had been aggravated by her back injury.

Lasiter sought review of the ALJ's finding with respect to the ulcer, and Industrial sought review regarding the orthopedic and hypertension problems. The ALJ affirmed the award on March 19, 1986, and Lasiter filed a petition for special action in the court of appeals. By stipulation, the special action was dismissed and the matter remanded to the Commission for further proceedings.

On December 2, 1986, Industrial sent Lasiter a notice terminating her benefits as of October 31, 1986 with no additional permanent disability. Lasiter requested a hearing, contending that her medical condition was not stationary. Following a hearing, the ALJ found the testimony of Glen Bair, M.D., (Industrial's expert) convincing, and further found that Dr. Maxwell's diagnosis of Lasiter's condition was not specific enough to warrant a finding that further surgery was necessary. Although the ALJ ruled that Lasiter's condition had become medically stationary, he added that "[i]f in the future some more specific diagnosis is made then perhaps further surgery might be indicated, but at the present time it is the undersigned's finding that the applicant's condition became medically stationary on October 31, 1986." On administrative review, the ALJ affirmed this decision.

C. The Present Dispute

On January 14, 1988, Dr. Maxwell again examined Lasiter and found that her back had become more unstable. He indicated in his report that she demonstrated symptoms of spinal stenosis and an unstable fusion with pseudoarthrosis. He concluded that "[o]ur plan at the current time is to press on with myelogram and CT scan, [before] deciding whether or not exploration of the disc spaces is going to be required[;] or if it is all epidural fibrosis, we may be able to only do the spinal fusion." On January 26, at Dr. Maxwell's request, Jack Mayfield, M.D., examined Lasiter and concluded that "the best solution to her problem would be surgical including a posterior segmental pedicle screw instrumentation with bilateral fusions and, two weeks later, an anterior spinal fusion between L4 and L5." In a January 29, 1988 letter, Dr. Maxwell informed Lasiter's attorney of his recommendation: "there is gross instability at the L4-5 region. She is in need of an interpeduncular fusion to stabilize the spine from the posterior region and also will likely require an anterior lumbar fusion."

On January 28, 1988, Lasiter filed a new petition to reopen. She attached a copy of Dr. Maxwell's January 14 report and indicated that additional reports would be forthcoming as received. The petition noted that "[r]ecent updated diagnostic studies, while hospitalized, reveal the pseudoarthrosis, and I need additional surgery to stabilize my back. There is an orthopedic surgeon, ... Dr. Mayfield, who has also seen and examined me. Additional reports will be forthcoming as soon as received."

On February 2, the Commission sent Industrial a notice of Lasiter's petition to reopen, with a copy of Dr. Maxwell's January 14 report attached. On February 4, Lasiter's attorney sent the Commission a copy of Dr. Maxwell's January 29, 1988 letter recommending surgery. On February 5, without having sought an independent medical examination as allowed by A.R.S. § 23-1026, Industrial denied Lasiter's petition to reopen. Lasiter then requested a Commission hearing.

Without further notice to Industrial, Lasiter underwent back surgery on March 30, 1988 and again on April 18, during which the L3-4, L4-5, and L5-S1 joints were fused. Industrial's liability for this surgery is the subject of the present dispute.

After three hearings on Lasiter's petition to reopen, the ALJ issued an award on April 27, 1989. The award addressed two issues: (1) "whether the applicant had a new, additional or previously undiscovered disability or condition caused by the industrial injury"; and (2) "whether [Industrial] had notice pursuant to A.R.S. [§ 23-1062(A) ] that the surgeries in March and April of 1988 were going to be done." Decision Upon Hearing and Findings and Award Granting Petition to Reopen But Denying Carrier Liability for Surgery, April 27, 1989, at 3 ("ALJ Findings").

The ALJ granted Lasiter's petition to reopen, finding that she had shown "there was a new, additional or previously undiscovered disability or condition caused by the industrial injury." Id. at 5. The ALJ therefore concluded that Lasiter was "entitled to have her claim reopened for further benefits." Id. The ALJ also found, however, that Lasiter had not provided adequate notice of the surgery to the carrier as required by A.R.S. § 23-1062(A), and Industrial therefore was not liable for the cost of her surgery:

The Statute [A.R.S. § 23-1062(A) ] and the cases make it clear that before a carrier is charged with a liability for paying for medical care it must receive notice before the care is given that it is going to be given. In this case there are medical reports which state the opinion of the surgeon that additional care is needed but there is no evidence that the applicant or the applicant's attorney or the applicant's physician notified the employer or the insurance carrier specifically that either of the surgeries in March and April of 1988 were going to be performed. There is a medical report from Dr. Maxwell to applicant's attorney dated January 28, 1988, saying that the applicant is in need of a fusion. There is a medical report from Jack Mayfield, M.D., saying that the best solution to the applicant's problem would be a fusion. There is also a medical report which appears to be a progress note with copy to applicant's attorney saying "our plan at the current time is to press on with myelogram and CT scan, therefore deciding whether or not exploration of the disc spaces is going to be required or if it is all epidural fibrosis, we may be able to only do the spinal fusion."

The undersigned finds these various comments do not constitute notice to the carrier within the meaning of A.R.S. [§ 23-1062(A) ]. The undersigned finds further that there is no evidence of an emergency which would justify ignoring the notice requirement. See Pickett v. Industrial Commission, 26 Ariz.App. 213, 547 P.2d 484 (1976). See also Terry Grantham Co. v. Industrial Commission, 15 Ariz. 180 (App.) 741 P.2d 313 (1987).

Id. at 5-6 (emphasis added). The ALJ came to the following conclusion:

In summary, and considering all of the evidence, the undersigned finds that the testimony of Dr. Maxwell is more persuasive than that of Dr. Bair and that therefore the applicant has sustained a new, additional or previously undiscovered disability and that therefore her claim should be reopened. The undersigned finds further that the applicant failed to give notice pursuant to A.R.S. [§ 23-1062(A) ] of the surgeries performed in March and April of 1988 and that these surgeries and the resultant costs are not the liability of the defendant insurance carrier.

Id. at 6-7. On administrative review, the ALJ affirmed this award on June 21, 1989.

Lasiter filed a petition for special action in the court of appeals,...