Regnier v. Industrial Com'n of Arizona, 1

• Decision Date: 19 September 1985
• Docket Number: No. 1,CA-IC,1
• Citation: 146 Ariz. 535,707 P.2d 333
• Parties: Stephen E. REGNIER, Petitioner Employee, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Ford Motor Company, Respondent Employer, Ford Motor Company, c/o Employers Self Insurance Service, Respondent Insurance Carrier. 3215.
• Court: Arizona Court of Appeals

Page 333

707 P.2d 333

146 Ariz. 535

Stephen E. REGNIER, Petitioner Employee, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent Ford Motor Company, Respondent Employer Ford Motor Company, c/o Employers Self Insurance Service, Respondent Insurance Carrier.

No. 1 CA-IC 3215.

Court of Appeals of Arizona Division 1, Department A.

Sept. 19, 1985.

Evans, Kitchel & Jenckes by Leon D. Bess, J. Stanton Curry, Phoenix, for petitioner employee.

Dennis P. Kavanaugh, Chief Counsel The Industrial Com'n. of Arizona, Phoenix, for respondent.

Lewis & Roca, by Merton E. Marks, Stephen M. Bressler, Phoenix, for respondent employer.

OPINION

FROEB, Judge.

The issue in this special action review of an Industrial Commission award is whether the claimant is entitled to payment for medical procedures that could allow him to father children. Because the administrative law judge's determination was based, in part, upon erroneous conclusions of law, we set aside the award denying benefits.

On October 2, 1980, claimant Stephen Regnier, a test car driver for Ford Motor Company (respondent), was injured while at work. As a result of the industrial incident, claimant is a quadriplegic and is unable to have an erection and/or to ejaculate so as to become a father in the normal way. Since birth, claimant has had one undescended testicle.

Claimant's claim for benefits was accepted by respondent employer and he began to receive total temporary disability benefits. Approximately two years after the injury, claimant requested respondent to pay for medical procedures that could allow him to become a father. These procedures involve implanting an artificial spermatocele or sperm reservoir in claimant's only testicle, aspirating by hypodermic syringe the sperm collected, and artificially inseminating claimant's wife with the sperm. On February 11, 1983, a notice of claim status was issued denying payment for expenses incurred as a result of these procedures. Claimant protested and requested a hearing.

At hearing, claimant, claimant's wife and four physicians testified. Claimant testified that he and his wife began seriously to consider having children just prior to his industrial accident. He further stated that he understood and was willing to undergo the implantation procedure. Claimant's wife testified that she desired children and would be willing to undergo the artificial insemination procedure. Reuven Geller, M.D., a board-certified urologist and member of the Pacific Coast Fertility and Sterility Society, testified that he had examined claimant eight times and had performed surgery on claimant's bladder in 1983. He stated that he had discussed with claimant the procedure to implant an artificial spermatocele in claimant's right testicle. Although Dr. Geller testified that he had never performed the procedure, he stated that he was familiar with it because he had observed it performed in a film and had discussed the procedure with physicians who had successfully performed it. ¹ Dr. Geller stated that, after implanting the artificial spermatocele, claimant would have a ten to fifteen percent chance of fathering a child. He stated that absent the procedure claimant would be unable to father a child. On cross-examination, Dr. Geller indicated that he assumed claimant was producing viable sperm but stated that absent surgery no physician could state to a certainty whether claimant's testicle was actually producing sperm.

Robert Howard Tamis, M.D., a board-certified obstetrician and gynecologist, and the founder and director of the Arizona Fertility Institute, testified that he examined claimant's wife to determine whether she could become pregnant. After examining claimant's wife, X-raying her fallopian tubes and taking her basal temperature, he concluded that her fallopian tubes were unobstructed and that she was ovulating. Dr. Tamis, however, admitted that he had no certain evidence that claimant's wife could become pregnant and that additional tests should be performed to answer the question. Dr. Tamis also stated that there was no reason to believe that the medical procedures would not be successful, assuming that claimant's wife could become pregnant and that claimant was producing sperm.

William F. Osborn, M.D., a board-certified urologist who had performed surgery on claimant in 1981, testified on respondent's behalf. Dr. Osborn characterized the procedure to implant a spermatocele as experimental and explained that he had never heard of the procedure until respondent's counsel provided him with an article on the subject. Dr. Osborn testified that he did not believe claimant could produce sufficient sperm with which to artifically inseminate claimant's wife even if the artificial spermatocele were implanted. Although Dr. Osborn never examined claimant to determine whether claimant could produce sperm, he explained that claimant had an undescended testicle and, statistically, individuals with one undescended testicle may have impaired sperm production in the descended testicle.

Arthur Fishman, M.D., a board-certified urologist, also testified for respondent. Dr. Fishman stated that he never examined claimant but had reviewed claimant's medical file and read articles on the spermatocele procedure. He did not think it was appropriate to offer claimant hope of fathering children through the proposed procedures because the chance of success was slim.

The administrative law judge entered an award finding claimant not entitled to payment for the medical procedures. The award was affirmed on review and this special action followed.

On appeal, claimant argues that there are three reasons to set aside the award. First, the administrative law judge erred in concluding that a compensable medical benefit must result in an increased ability to function in the work place. Second, the administrative law judge erred in concluding that the procedures would not improve claimant's condition. Third, claimant contends the procedure was reasonably required because it was the only procedure whereby claimant could overcome his functional loss and father children. Respondent contends that when read in its entirety the award must be affirmed. Specifically, respondent argues that the proposed procedures are not reasonably required medical benefits, but rather are experimental procedures that could expose respondent to future liability.

Medical benefits are awarded pursuant to A.R.S. § 23-1062(A) which provides that:

Promptly, upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, including artificial members, reasonably required at the time of the injury, and during the period of disability. Such benefits shall be termed "medical, surgical and hosptial benefits."

The administrative law judge's rejection of the proposed procedure appears, in part, to have been based upon two erroneous conclusions of law. Relying upon Heidler v. Industrial Commission, 14 Ariz.App. 280, 482 P.2d 889 (1971), Imrich v. Industrial Commission, 13 Ariz.App. 155, 474 P.2d 874 (1970), and 2A Larson, The Law of Workmen's Compensation § 65.51, the administrative law judge concluded that "medical benefits that will not conceivably result in an increased ability to function in the work place" are not authorized under the statute. This conclusion has been expressly rejected in Arizona.

An injured employee is entitled to medical treatment even if the injury does not disable him for work or adversely affect his earning capacity. Sneed v. Belt, 130 Ariz. 229, 635 P.2d 517 (App.1981). See also, State Compensation Fund v. Industrial Commission, 25 Ariz.App. 316, 543 P.2d 154 (1975) (medical treatment for non-disabling psycho-neurosis is compensable) and Engle v. Industrial Commission, 77 Ariz. 202, 269 P.2d 604 (1954) (...