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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

I N T HE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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

Petitioner2

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 Ind ustrial Commission of Arizona (the Commission) decision upon review, in which the administrative law judge (ALJ) affirm ed suspension of Neri’s

benefits from M ay to September 2016 and awarded her compensation for additional right knee treatment under Arizona Revised Statute s (A.R.S.)

section 23

- 1026(A)

. 1 For the following reasons, we affirm the suspension

and award

.

FACTS 2 AND PROCEDURAL HISTORY

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

, while working as an interpreter and receptionist a t 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 e mergency r oom 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)).N ERI v. PHOENIX UNION HIGH/ALLIANCE

Decisi on of the Court

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 knee s and leg s , a h eadache , 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 Alli ance ( the Carrier) in December 2015

. Dr. Powers concluded Neri did not have any

direct head trauma . He also assert ed believed that because she had

recounted similar symptoms following a workplace accident in 2012 that

did not involve head trauma , “ i t seems mo st probable that her cognitive complaints are a reflection of cognitive inefficiency due to anxiety and depression rather than a traumatic brain injury.” H e recommended a formal neuropsychological evaluation to evaluate Neri’s reported cognitive

i mpairment

.

¶5 Neri then saw Sanjay Patel , M.D

. , who diagnosed her with

p ost

- c oncussion s yndrome

, 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

, Russel l 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

in jections 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 membran e of the knee joint.” Dorland’s Illustrated Medical Dictionary 1488 (31st ed. 2007).N ERI v. PHOENIX UNION HIGH/ALLIANCE

Decisi on of the Court

4 she was not a surgical candidate because her subjective complaint s were not supported by pathology that would warrant surgical intervention

.

¶8 Neri was scheduled to see Jeannine Morr e ne

- 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

- Strupin s ky advised the

Carrier and Neri’s former attorney that the N ational Academy of Neuropsychology rules do not allow neuropsychology test question s to be

recorded

. However, Dr . Morrene

- Strupin s ky 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

. After th e second cancell ed exam, the Carri er discontinued Neri’s benefits.

¶9 Neri finally submitted to a neuropsychological IME with James Youngjohn, P h. 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 cau s ally

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

tr eatment and identified no restrictions on Neri’s work or activity

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

.

¶10 In a December 2016 decision, t h e Commission agreed Neri obstructed the neuropsychological IME and upheld the susp ension 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 A rizona Rule s 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 is sue 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. ” ). AsN ERI v. PHOENIX UNION HIGH/ALLIANCE

Decisi on 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 discret ion and address

the merits of the issues raised in Neri’s opening brief

. See Clemens v. Clark

, 101 Ariz. 413

, 414 (19 66 ) (“[ 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 up on her failure to cooperate with the neuropsych ological IME. We give deference to factual findings of the Commission, but independently review its legal conclusions. PFS v.

Indus. Comm ’ n, 1 91 Ariz. 274, 277 (App. 1997). Further more, w e 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. In dus. 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 wa s her right to record an IME and

, ther efore

, it was Dr. Morrene

- Strupinsky who obstructed the exam. To support this

4 Ner i 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 impairm en t treatment from August 2016 until present

. However, t he se 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))

.N ERI v. PHOENIX UNION HIGH/ALLIANCE

Decisi on of the Court

6 position, Neri relies up on Kwietkauski v. Indus trial Comm ission , which held

that a n 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 b ased upon instructions

from the carrier. Id . at 169 , ¶ 4 0

. Effectively, the doctor was acting at the

behest of the carrier rather than exercising his own independent medical prerogative

. In contrast, h ere , the American Psychological A ssociation’s Ethical Principles of Psychologists and Code of Conduct bar s neuropsychologists from releasing the test questions administered in

evaluation s u nless one of a very few exceptions apply , none of which apply

to the immediat e facts

. Ethical Principles of Psychologists and Code of Conduct R. 9.11 ( American Psychological Association

, 2002)

. We cannot say Dr.

Morren e

- Strupinsky obstructed the IM E by simply observing the ethical rules of her licensed profession , and t he 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 . T he suspension of benefits from May to September 2016 on this

basis wa s proper , and we find no error

.

II. Knee Treatment

¶17 N e ri argues the Commission erred by refusing her request for more comprehensive knee treatment including surgery

. W e defer to the factual determinations of the ALJ and will reverse the award only if it is

unsupport ed 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 wer e inconsistent with objective findings and therefore surgically correcting the identified deficiencies w as unlikely to alleviate Neri’s complaints. However, continued physical therapy and injections could provide relief and were approved. Ner i accus e s Dr . Meldrum of having changed his diagnosis after being called to testify in front of the

Commission

. Even if this were true, t he Commission accepted Dr.N ERI v. PHOENIX UNION HIGH/ALLIANCE

Decisi on of the Court

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 recommendation s is affirmed.