                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
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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             NERI v. PHOENIX UNION HIGH/ALLIANCE
                        Decision of the Court

¶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).
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             NERI v. PHOENIX UNION HIGH/ALLIANCE
                        Decision of the Court

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. After the 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

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             NERI v. PHOENIX UNION HIGH/ALLIANCE
                        Decision of the Court

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)).
                                      5
             NERI v. PHOENIX UNION HIGH/ALLIANCE
                        Decision of the Court

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.

                                      6
            NERI v. PHOENIX UNION HIGH/ALLIANCE
                       Decision of the Court

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.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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