NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

CITY OF FLAGSTAFF , P etitioner Employer , SCF ARIZONA, Petitioner Carrier,

v. THE INDUSTRIAL COMMISSION OF ARIZONA , Respondent, RICK A. BUNCH, Respondent Employee

. No. 1 CA

- IC 13

- 0054

Special Action

- Industrial Commission ICA Claim No. 20072

- 560464

Carrier Claim No. 0730712 Allen B. Shayo, Administrative Law Judge
AWARD SET ASIDE

COUNSEL SCF Arizona , Phoenix By John W. Main Counsel for P etitioner s Employer and Carrier2 Industrial Commission of Arizona , Phoenix By Andrew F. Wade Counsel for Respondent Taylor & Associates, PLLC , Phoenix By Thomas C. Whitley C ounsel for Respondent Employee

MEMORANDUM DECISION Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

THOMPSON , Judge: ¶1 This is a special action review of an Industr ial Commission of Arizona (ICA ) award and decision upon review awarding the respondent employee (claimant) mileage expenses he incurred for travel
to receive medical treatment. One issue is presented on appeal: whether the administrative law judge (ALJ) erred by awarding the claimant mileage reimbursement for his travel from F lagstaff to Phoenix , when
medical treatment was available in Flagstaff. Because the evidence of
record did not establish that the claimant had to travel to Phoenix to obtain treatment, we set aside the award.
JURISDICTION AND STA NDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § § 12

- 120.21(A)(2) (2003), 23

- 951(A) (2012), and ArizonaCITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

3 Rule of Procedure for Special Actions 10

. 1 In reviewing findings and awards of the ICA, we defer to the ALJ’s factual find ings, but review questions of law de novo

. Young v. Indus. Comm’n , 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’ n , 202 Ariz. 102, 105, ¶ 1 6, 41 P.3d 640, 643 (App. 2002).

PROCEDURAL AND FACTUAL HISTORY ¶3 The claimant lived in Flagstaff and performed maintenance
work at the petitioner employer’s, City of Flagstaff ’s (Flagstaff’s),

wastewater treatment plant. On August 9, 2007, he sustained an
industrial neck and back strain. The claimant filed a workers’ compensation claim , which was accepted for benefits by the petitioner carrier, SCF Arizona (SCF)

. Th e claimant received extensive conservative
treatment in Flagstaff from an orthopedic surgeon, a pain management specialist, and a neurosurgeon.

¶4 The claimant’s claim was eventually closed with a 5% unscheduled permanent partial impairment, no loss of earning capacity

1 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.CITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

4 (L E C), and a supportive care awar d

. T he s upportive care award provided:
Notice of Supportive Care issued 7/2/2010 is hereby rescinded. Notice of Supportive Care issued 6/11/2010 is hereby amended as follows: Supportive Care under the management of Randall Scott, MD to include 4 office visits per yr., 10 physical therapy sessions per yr., 1 diagnostic study per yr., medications and up to 2 radiofrequency denervations per yr. (performed by John Ledington, MD) Supportive care will be reviewed annually and may be closed without notice if not used wit hin one year. The claimant testified that after his claim closed, he continued to have the

same neck pain , a 7 or 8 on a scale of 10, but the only treatment he was
offered was the radiofrequency denervation.
¶5 Because of the claimant’s ongoing neck pain, his attorney recommended a consultation with Daniel Lieberman, M.D., a P hoenix
neurosurgeon. The claimant discussed this recommendation with his family p ractitioner , Dr. Scott , and obtained a referral to see Dr. Lieberman

. Dr. Lieberman examin ed the claimant and reported:

Assessment and Plan:

Rick h as a right C6 radiculopathy and neck pain after C5/6 disc hernation. His history, and the absence of pathology at any other level, strongly suggest this was due to his industrial injury. He ha s fa iled excellent conservative care, I’d recommend ACDF at C5/6. The r/b/a were described to him in detail.CITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

5 He is medically fit for the procedure with routine preoperative evaluation. The claimant filed a petition to reopen and attached Dr. Lieberman’s
repo rt. The petition eventually was granted , and the claimant underwent
the recommend ed surgery.

¶6 The claimant testified that following Dr. Lieberman’s
surgery, his residual neck pain is a 1 on a scale of 10 , and he feels better
since surgery th a n he has at any other time since the industrial injury.
The claimant next filed for an A.R.S. § 23

- 1061(J) 2 h earing to r equest reimbursement of his travel expenses from Flagstaff to Phoenix for Dr.
Lieberman’s treatment

. Th e claim was denied for benefits, a nd the matter proceeded to an ICA hearing.
¶7 The ALJ held one hearing for testimony from the claimant. He then entered an award granting the mileage reimbursement (Award)

. SCF timely requested administrative review, bu t the ALJ summa rily
affirmed the Award. SCF next brought this appeal.

2 Section 23

- 1061(J) provides that a claimant may request an investigation by the ICA into the payment of benefits, wh ich the claimant believes that he is owed but has not been paid.CITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

6 DISCUSSION
¶8 Under Arizona law, an industrially injured claimant is entitled to receive payment of his medical expenses. See A.R.S. § 23

- 1021 (2013)

. These expenses include all reasonably required medical, surgical, and hospital benefits. See A.R.S. § 23

- 1062(A) (199 5 )

. Whether a benefit is reasonably required under the statu te is a question for the ALJ. Regnier v.
Indus. Comm’n , 146 Ariz. 535 , 539, 707 P.2d 333, 337 (App. 1985).
¶9 Section 23

- 1062(A) is silent as to travel expenses, and the
Arizona Workers ’ Compensation Act typically is construed to exclude the payment of travel expenses incurred while obtaining industrially related
medical treat ment. Martinez v. Indus. Comm’n , 175 Ariz. 319, 321

- 22, 856 P.2d 1197, 1199

- 2000 (App. 1993) ; s ee also 5 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 94.03[2], at 94

- 48 (2013)

. 3 We distinguished Martinez in Carr v. Indus trial Comm ission , 197 Ariz. 164, 3
P

. 3d 1084 (App. 1999).
¶10 In Martinez , the claimant, lived, worked, was injured, and
received treatment in the Phoenix area. 175 Ariz. at 320

- 21 , 856 P.2d at

3 Arizona ’s workers’ compensation statutes do provide for reimbursement of reasonable travel expenses when a claimant must travel at the behest of the employer, carrier, or ICA for medical ex aminations or treatment. See A.R.S. § 23

- 10 26 (A) ; Arizona Administrative Code (A

. A

. C

. ) R20

- 5

- 116 ( A )

.CITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

7 1198

- 99

. The travel expenses for which th at claimant sought
reimbursement were all incurred in the Phoenix m etropolitan ar ea. Id. In
Carr , the claimant lived in a rural area outside of Seligman, Arizona. 197 Ariz. at 165, ¶ 2, 3 P .3d at 1085. T he closest available medical treatment was in Flagstaff, Arizona, a 230 mile round trip from his home. Id. at 165

- 66, ¶ 4, 3 P.3d at 1 085

- 86. We concluded that without payment of travel
expense s , the claimant effe ctively was precluded from receiving the
medical benefits to which he was entitled under the Arizona Workers ’ Comp e nsation Act. Id . at 167, ¶ 12, 3 P.3d at 108 7. For that reason, we held “that an injured worker who must travel outside the area in which he
or she resides to receive treatme nt is entitled to reimbursement for travel expenses.” Id

. 4
¶11 The facts i n this case fit neither Martinez nor Carr . Unlike
Martinez , the claimant did in fact travel outside of the area where he lived, worked, and was injured to receive medical treatment. Unlike Carr , the
claimant did not live in a rural area with no access to medical care without a long commute. In fact, the evidence of record established that there

4 We recently held that travel expenses are medical benefits for purposes of the two year limitations period for a workers’ compensation claimant to file a medic al expense reimbursement request within the meaning of A.R.S. §§ 23

- 10 21,

- 1062 (A) , and

– 1062.01(C). See Drew v. Indus. Comm’n , 232 Ariz. 36, 39, ¶ 11, 301 P.3d 202, 205 (App. 2013).CITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

8 were a number of medical specialists available to the claiman t in the Flagstaff area.
¶12 Although the ALJ in this case recognize d the “must travel”
standard articulated in Carr , he did not apply it . The ALJ found that “when an injured worker meets his burden of proving that travel out of
town is necessary to obtain medical care for the industrial injury, th e n the defendant carrier is liable for travel expenses.” The evidence here
established that the claimant had received extensive conservative

treatment in Flagstaff, but d espite th at treatment, he had se vere ongoing pain

. Based on these facts, we agree with the ALJ that it was reasonable
for the claimant to seek medical care from another physician

. However, because claimant failed to show that he couldn’t get such treatment in Flagstaff, it was error to award him reimbursement for his travel expenses
to Phoenix as “necessary

. ”
¶13 A claimant typically ha s an unrestricted right to select a treating physician. See generally Estes Corp. v . Indus. Comm’n , 23 Ariz. App. 370, 376, 533 P.2d 678, 684 (1975). Upon n otice to the carrier, the claimant may obtain reasonably required medical treatment without obtaining prior carrier approval. See Lasiter v. Indus. Comm’n, 173 Ariz. 56, 61, 839 P.2d 1101, 1106 (1992). While courts in other states have interpreted the ir

me dical benefits statutes to include travel expenses, we have not done soCITY OF FLAGSTAFF v. SCF ARIZONA Decision of the Court

9 in Arizona. As we stated in Martinez , this is an issue more appropriately directed to the legislature and we decline to take that step here

. Id . at 322

- 23, 856 P.2d at 1200

- 01.
¶14 Becau se the evidence of record did not establish that the
claimant had no choice but to travel to Phoenix to obtain medical

treatment , we set aside the award of mileage reimbursement

.