NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARIA C. NERI, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF

ARIZONA, Respondent,

PHOENIX UNION HIGH SCHOOL DISTRICT, 

Respondent Employer,

ARIZONA SCHOOL ALLIANCE FOR WORKERS 

COMPENSATION, Respondent Carrier.

No. 1 CA-IC 17-0012

FILED 11-30-2017

Special Action - Industrial Commission

ICA Claim No. 20153-230122

Carrier Claim No. 2015001582A

The Honorable Robert F. Retzer, Administrative Law Judge

AFFIRMED

COUNSEL

Mari C. Neri, Glendale

Petitioner
2

Industrial Commission of Arizona, Phoenix

By Jason M. Porter

Counsel for Respondent

Lester Norton & Brozina, PC, Phoenix

By Rachel Parise Brozina

Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge Jon W. Thompson and Chief Judge Samuel A. Thumma joined.

J O N E S, Judge:

¶1 Maria Neri petitions this Court for special action review of an

Industrial Commission of Arizona (the Commission) decision upon review, 

in which the administrative law judge (ALJ) affirmed suspension of Neri’s

benefits from May to September 2016 and awarded her compensation for

additional right knee treatment under Arizona Revised Statutes (A.R.S.) 

section 23-1026(A).

1 For the following reasons, we affirm the suspension 

and award. 

FACTS2 AND PROCEDURAL HISTORY

¶2 In November 2015, Neri fell, injuring her knee and head,

while working as an interpreter and receptionist at a recruitment event for 

the Phoenix Union High School District. She was provided first aid on the 

scene and submitted a claim for workers’ compensation benefits that night. 

Neri then went to the emergency room for an evaluation where she was 

diagnosed with various abrasions, neck and back strain, and a head injury.

 

1 Absent material changes from the relevant date, we cite a statute’s 

current version.

2 We view the evidence in the light most favorable to sustaining the 

Commission’s findings and awards. Polanco v. Indus. Comm’n, 214 Ariz. 489, 

490-91, ¶ 2 (App. 2007) (citing Roberts v. Indus. Comm’n, 162 Ariz. 108, 110 

(1989)).
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3

¶3 After the fall, Neri saw Michael Goodwin, P.A.-C, several

times. Goodwin found Neri had experienced an accidental fall resulting in

abrasions on one knee, strain of both knees and legs, a headache, and 

traumatic myalgia. He prescribed painkillers and a home bandage regime 

for her knees and also referred Neri to physical therapy.

¶4 Michael Powers, M.D., performed an Independent Medical 

Examination (IME) of Neri on behalf of Arizona School Alliance (the 

Carrier) in December 2015. Dr. Powers concluded Neri did not have any 

direct head trauma. He also asserted believed that because she had

recounted similar symptoms following a workplace accident in 2012 that 

did not involve head trauma, “it seems most probable that her cognitive 

complaints are a reflection of cognitive inefficiency due to anxiety and 

depression rather than a traumatic brain injury.” He recommended a 

formal neuropsychological evaluation to evaluate Neri’s reported cognitive 

impairment.

¶5 Neri then saw Sanjay Patel, M.D., who diagnosed her with

post-concussion syndrome, a mild traumatic brain injury, bilateral leg and 

knee pain, and upper back pain. Dr. Patel recommended cortisone

injections for her right knee and that she follow up with an orthopedic 

surgeon if the injections did not help. He also recommended she follow 

through with physical therapy and referred her to neuropsychologist John 

Walker, Psy. D., for further evaluation.

¶6 In the fall of 2016, Russell Meldrum, M.D. saw Neri twice and

reviewed an MRI scan of her right knee. Dr. Meldrum noted a meniscal 

tear in an area Neri was not experiencing pain and possible “plica,” or pain 

caused by irritation of the plicae alares,

3 which could be treated with 

injections or surgery if injections would affect her diabetes. He believed the 

knee pain resulted from a degenerative condition, however, rather than any

trauma. When asked if Neri needed surgery or injections as a result of the 

workplace accident, Dr. Meldrum stated: “I doubt it.”

¶7 At the Carrier’s request, Neri underwent an IME with

orthopedic surgeon, Adam Farber, M.D. Dr. Farber described Neri’s right 

knee pain as “out of proportion to objective findings.” He attributed the

“right knee abrasion and subsequent patellofemoral pain” to the workplace 

accident but added that her morbid obesity was a contributing cause. He 

recommended injections and additional physical therapy but concluded 

 

3 Plicae alares are “a pair of folds of the synovial membrane of the knee 

joint.” Dorland’s Illustrated Medical Dictionary 1488 (31st ed. 2007).
NERI v. PHOENIX UNION HIGH/ALLIANCE

Decision of the Court

4

she was not a surgical candidate because her subjective complaints were 

not supported by pathology that would warrant surgical intervention. 

¶8 Neri was scheduled to see Jeannine Morrene-Strupinsky, 

Ph.D., for a neuropsychological IME, but the exam was rescheduled when 

Neri refused to proceed without being allowed to record the exam. Before 

the next appointment, an employee of Dr. Morrene-Strupinsky advised the

Carrier and Neri’s former attorney that the National Academy of 

Neuropsychology rules do not allow neuropsychology test questions to be 

recorded. However, Dr. Morrene-Strupinsky did ultimately agree to allow 

Neri to record the interview portion of the exam. At the next appointment, 

Neri once again refused to proceed without recording the entire exam, and 

the exam was then terminated. Afterthe second cancelled exam, the Carrier 

discontinued Neri’s benefits. 

¶9 Neri finally submitted to a neuropsychological IME with 

James Youngjohn, Ph. D. Dr. Youngjohn determined Neri may have 

sustained a minor closed head injury but was “predisposed to complaint of 

physical problems for psychological reasons,” and concluded Neri did “not 

suffer from any neuropsychological or psychological condition causally 

related to her 11/07/15 work injury.” Dr. Youngjohn did not prescribe any 

treatment and identified no restrictions on Neri’s work or activity. 

Following this exam, the Carrier agreed to resume processing Neri’s claim.

¶10 In a December 2016 decision, the Commission agreed Neri 

obstructed the neuropsychological IME and upheld the suspension of

benefits from May to September 2016. The Commission also awarded Neri

continued treatment of her knee, including cortisone injections and physical 

therapy. Neri timely filed a request for review of the Commission’s

decision, which was affirmed upon review. Neri then timely petitioned this 

Court for special action relief. We have jurisdiction pursuant to A.R.S. 

§§ 12-120.21(A)(2), 23-951(A), and Arizona Rule of Procedure for Special 

Actions 10.

DISCUSSION

¶11 As an initial matter, we note that Neri’s opening brief fails to 

comply with the Arizona Rules of Civil Appellate Procedure because she 

neglected to cite to any case law for support. See ARCAP 13(a)(7)(A) (“An 

‘argument’ . . . must contain . . . [the a]ppellant’s contentions concerning 

each issue presented for review, with supporting reasons for each 

contention, and with citations of legal authorities and appropriate 

references to the portions of the record on which the appellant relies.”). As 
NERI v. PHOENIX UNION HIGH/ALLIANCE

Decision of the Court

5

a self-represented litigant, Neri is held to the same standard of familiarity 

with required procedures and rules attributed to qualified attorneys. Smith 

v. Rabb, 95 Ariz. 49, 53 (1963). Although we may consider Neri’s failure to 

develop her argument as a waiver, we exercise our discretion and address 

the merits of the issues raised in Neri’s opening brief. See Clemens v. Clark, 

101 Ariz. 413, 414 (1966) (“[W]e remain inclined to decide cases on their 

merits.”).

¶12 On appeal, Neri argues the Commission erred by: (1) finding 

the suspension of her benefits from May to September 2016 was proper, and

(2) rejecting her assertion that she required knee treatment in addition to 

the award given.

4

I. Suspension of Benefits

¶13 Neri first argues the Commission erred in suspending her 

benefits from May to September 2016 based upon her failure to cooperate 

with the neuropsychological IME. We give deference to factual findings of 

the Commission, but independently review its legal conclusions. PFS v. 

Indus. Comm’n, 191 Ariz. 274, 277 (App. 1997). Furthermore, we affirm a 

decision by the Commission if it is “reasonably supported by the evidence 

after reviewing the evidence in a light most favorable to sustaining the 

award.” Kwietkauski v. Indus. Comm’n, 231 Ariz. 168, 170 (App. 2012) (citing

Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002)).

¶14 By statute, at the carrier’s request, an employee must submit 

to an IME for continued compensation of benefits. A.R.S. § 23-1026(A). But 

“[i]f the employee refuses to submit to the medical examination or obstructs 

the examination, his right to compensation shall be suspended until the 

examination has been made, and no compensation shall be payable during 

or for such period.” A.R.S. § 23-1026(C). 

¶15 Neri argues it was her right to record an IME and, therefore,

it was Dr. Morrene-Strupinsky who obstructed the exam. To support this 

 

4 Neri also argues: (1) her medical and health rights were violated; 

(2) she is entitled to additional compensation for June to December 2016 

since she could not work because of her injury; and (3) she is entitled to 

additional compensation for memory impairment treatment from August 

2016 until present. However, these arguments were not raised with the 

ALJ, and we therefore do not consider them. See T.W.M. Custom Framing v. 

Indus. Comm’n, 198 Ariz. 41, 44 (App. 2000) (citing Norsworthy v. Indus. 

Comm’n, 24 Ariz. App. 73, 74 (1975)). 
NERI v. PHOENIX UNION HIGH/ALLIANCE

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position, Neri relies upon Kwietkauski v. Industrial Commission, which held 

that an employee is entitled to record her IME and her insistence on doing 

so does not constitute an obstruction of the examination because “the use 

of a tape recorder does not turn the examination into an adversarial 

proceeding.” 231 Ariz. 168, 171, ¶ 13 (App. 2012) (citing Burton v. Indus. 

Comm’n, 166 Ariz. 238, 242 (App. 1980)). Under Kwietkauski, a physician can 

decline to conduct the IME and refer the employee to an alternative 

physician, but his policy does not override the employee’s right to record.

Id. at ¶ 14.

¶16 Kwietkauski is distinguishable. In Kwietkauski, a physician

would not allow the employee to record the IME based upon instructions

from the carrier. Id. at 169, ¶ 40. Effectively, the doctor was acting at the 

behest of the carrier rather than exercising his own independent medical 

prerogative. In contrast, here, the American Psychological Association’s 

Ethical Principles of Psychologists and Code of Conduct bars

neuropsychologists from releasing the test questions administered in 

evaluations unless one of a very few exceptions apply, none of which apply 

to the immediate facts. Ethical Principles of Psychologists and Code of Conduct

R. 9.11 (American Psychological Association, 2002). We cannot say Dr. 

Morrene-Strupinsky obstructed the IME by simply observing the ethical 

rules of her licensed profession, and the record reasonably supports the 

Commission’s finding that Neri obstructed the exam, particularly in light 

of her violation of the agreement regarding recording that had been 

reached. The suspension of benefits from May to September 2016 on this 

basis was proper, and we find no error.

II. Knee Treatment

¶17 Neri argues the Commission erred by refusing her request for 

more comprehensive knee treatment including surgery. We defer to the 

factual determinations of the ALJ and will reverse the award only if it is 

unsupported by the evidence. See supra ¶ 13.

¶18 Here, the record reasonably supports the Commission’s

conclusion that the pain and/or injury to Neri’s right knee did not warrant 

surgery. Both Drs. Farber and Meldrum believed Neri’s subjective 

complaints were inconsistent with objective findings and therefore

surgically correcting the identified deficiencies was unlikely to alleviate 

Neri’s complaints. However, continued physical therapy and injections 

could provide relief and were approved. Neri accuses Dr. Meldrum of 

having changed his diagnosis after being called to testify in front of the 

Commission. Even if this were true, the Commission accepted Dr. 
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7

Meldrum’s hearing testimony as persuasive, and it is reasonably supported 

by the record. Therefore, we find no error.

CONCLUSION

¶19 The Commission’s decision upon review affirming the 

suspension of benefits and awarding Neri continued care for her knee in 

accordance with Dr. Farber’s recommendations is affirmed.