Arizona Court of Appeals Division One Holds that a Workers’ Compensation Claimant Who Expresses an Intention to Record an Independent Medical Examination Has Not Committed a “Wrongful Act” Constituting Obstruction of the IME Under A.R.S. § 23-1026(C).

On August 18, 2010, Janelle Kwietkauski slipped in the parking lot on her way into work.  Kwietkauski reported the incident to her supervisor and completed her shift.  After accepting Kwietkauski’s claim, her employer, Sentry, scheduled Kwietkauski for an independent medical examination (“IME”).  However, the physician scheduled to perform the IME declined to complete it because Kwietkauski tried to tape-record it.  A short time later, Sentry notified Kwietkauski that her benefits were suspended because she had obstructed the IME.  Kwietkauski subsequently requested a hearing, claiming that the Sentry was committing bad faith in the processing of her claim.  At the hearing, the administrative law judge affirmed the suspension of Kwietkauski’s benefits and denied Kwietkauski’s complaint for bad faith and unfair claims processing.  Kwietkauski appealed. 

On appeal, the Arizona Court of Appeals concluded that the suspension of benefits was in error.  In Arizona, an employee entitled to workers’ compensation must submit to an IME.  A.R.S. § 23-1026(C) prohibits the employee from obstructing the IME.  An employer may not, however, suspend an employee’s benefits pursuant to § 23-1026(C) unless the employee committed a “wrongful act.”   In this case, the Court held that Kwietkauski did not commit a “wrongful act” by asserting her intention to use a tape recorder during her IME because she was entitled to do so under Arizona law.  The Court, therefore, set the award aside.

Judge Gemmill authored the opinion; Judges Timmer and Downie concurred.