An award for supportive care is not a lifetime benefit and can be modified based on changes in medical conditions and recommendations of medical providers.

In Mest, the applicant injured his low back in 1982. The claim was closed in 1984 with admitted ongoing supportive medical care of leg braces, custom shoes, and four annual examinations per year. In February 2018, an amended notice of supportive care was filed changing the maintenance treatment to three office visits per year to evaluate applicant’s spinal cord stimulator. This was based on recent medical reports from two treating providers – Dr. Soriano and Dr. Cederberg. The applicant objected and requested a hearing to seek additional supportive care.

At the hearing, the applicant complained of continued lower back pain with drop foot, tingling in legs, restless leg syndrome, radiating pain down both legs, and sexual dysfunction. However, the ALJ found that the applicant’s testimony lacked credibility. The ALJ relied on testimony from Dr. Soriano, a board certified neurosurgeon, to support that the applicant did not require braces, injections, assistive services, or medications and the carrier’s reduced supportive care award was appropriate. Dr. Soriano tested that the applicant was exaggerating his symptoms and the symptoms were more likely caused by an unrelated surgery in 1992 and not the 1982 work injury. The ALJ also relied on the supporting IME report from Dr. Cederberg that reached the same conclusion in regards to continued supportive care. The applicant presented medical testimony from his primary care physician, a treating provider, and a nurse practitioner. These providers recommended further supportive care but the primary care physician noted the applicant’s condition was “very stable” and the nurse practitioner did not have a good understanding of the applicant’s industrial injury.

The ALJ upheld the carrier’s reduced supportive care award based on the evidence presented. The ALJ found the opinion of Dr. Soriano “more probably correct and well founded” while finding the applicant lacked credibility. The applicant appealed to the Arizona Court of Appeals (“the Court“) and argued that the medical evidence he presented was more persuasive than the carrier’s experts and that the prior award for supportive care could not be reduced as it was for lifetime benefits. The Court disagreed and affirmed the ALJ’s award.

The Court found that the record showed the ALJ weighed the evidence, including evidence from the applicant’s experts, and they could not re-weigh the evidence on appeal. The Court disagreed about the supportive care being a lifetime benefit. The Court reiterated that supportive care benefits are voluntary and not expressly authorized by the Arizona Worker’s Compensation Act. The Court upheld that the Commission is allowed to adjust supportive care benefits at any time based on a material change in the applicant’s physical condition.

The Court affirmed the ALJ’s award and finding that the applicant’s physical condition only required “intermittent evaluations of his spinal cord stimulator.”

Mest v. Indus. Comm’n of Ariz., 2020 WL 6503583 (Oct. 29, 2020).

Want to know more? Contact Ilene Feldmeier at ifeldmeier@pollartmiller.com or 877-259-5693.

December 2020 Newsletter

2020-12-31T11:34:57+00:00