SB1498 - 542R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 23-941, Arizona Revised Statutes, is amended to read:

START_STATUTE23-941. Hearing rights and procedure

A. Subject to section 23‑947, any interested party may file a request for a hearing concerning a claim.

B. A request for a hearing shall be made in writing, be signed by or on behalf of the interested party and include the interested party's address, state that a hearing is desired and be filed with the commission.

C. The commission shall refer the request for the hearing to the administrative law judge division for determination as expeditiously as possible. The presiding administrative law judge may dismiss a request for hearing if it appears to the presiding administrative law judge's satisfaction that the disputed issue or issues have been resolved by the parties. Any interested party who objects to such dismissal may request a review pursuant to section 23‑943.

D. At least twenty days' prior notice of the time and place of the hearing shall be given to all parties in interest by mail at their last known address. In the case of a hearing concerning suspension of benefits, pursuant to section 23‑1026, 23‑1027 or 23‑1071, only ten days' prior notice is required. Hearings shall be held in the county where the workman resided at the time of the injury or another place selected by the administrative law judge.

E. A record of all proceedings at the hearing shall be made but need not be transcribed unless a party applies to the court of appeals for a writ of certiorari pursuant to section 23‑951. The record of the proceedings, if not transcribed, shall be kept for at least two years but may be destroyed after that time if a transcription is not requested.

F. Except as otherwise provided in this section and rules of procedure established by the commission, the administrative law judge is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure and may conduct the hearing in any manner that will achieve substantial justice.

G. Any party shall be entitled to issuance and service of subpoenas under section 23‑921. Any party or the party's representative may serve such subpoenas.

H. Any interested party or the interested party's authorized agent shall be entitled to inspect any claims file of the commission, provided that such authorization is filed in writing with the commission.

I. Any interested party is entitled to one change of administrative law judge as a matter of right. To exercise the right to a change of administrative law judge, the interested party shall file a notice of change of administrative law judge. The notice of change of administrative law judge shall:

1. Be signed by the interested party or the interested party's authorized agent.

2. State the name of the administrative law judge to be changed.

3. Certify that the interested party or the interested party's authorized agent has timely filed the notice of change of administrative law judge. A notice of change of administrative law judge as a matter of right is timely if filed not more than thirty days after the date of the notice of hearing or not more than thirty days after a new administrative law judge is assigned to the claim if another interested party or the interested party's authorized agent has filed a notice of change of administrative law judge as a matter of right.

4. Certify that the interested party or the interested party's authorized agent has not previously been granted a change of administrative law judge as a matter of right for the claim.

J. Any interested party to a hearing before the commission or the interested party's authorized agent may file an affidavit for change of administrative law judge for cause against a presiding administrative law judge that sets forth any of the grounds as provided in subsection K of this section. The chief administrative law judge shall immediately transfer the matter to another administrative law judge. An affidavit for change of administrative law judge for cause shall be filed within the time frames provided in subsection I of this section.

K. Grounds that may be alleged as provided in subsection J of this section for change of administrative law judge for cause are:

1. That the administrative law judge has been engaged as counsel in the hearing before appointment as administrative law judge.

2. That the administrative law judge is otherwise interested in the hearing.

3. That the administrative law judge is of kin or otherwise related to a party to the hearing.

4. That the administrative law judge is a material witness in the hearing.

5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice or interest of the administrative law judge the administrative law judge party cannot obtain a fair and impartial hearing.

L. For the purposes of subsections I and J of this section, the employer and the employer's insurance carrier are considered a single party unless the employer's and the employer's insurance company's interests are in conflict.

M. After final disposition of the proceedings in which they are used, exhibits marked for identification or introduced as evidence at hearings or proceedings that cannot be readily copied, photocopied, mechanically reproduced or otherwise preserved as a document for inclusion in the record of the proceedings may be disposed of in the following manner:

1. By written notice, the attorneys of record, or if none, the parties, shall be notified that the counsel or the party introducing the exhibit may claim it at the industrial commission within sixty days.

2. After sixty days following notification, any exhibit remaining in the custody of the industrial commission shall be disposed of as state surplus property pursuant to the direction of the department of administration. A written description of the exhibit shall be included in the record to preserve the exhibit's identity.

N. Notwithstanding any other law, the employee, or if the employee is deceased, the employee's estate, surviving spouse or dependent, may bring any person of the employee's, estate's, surviving spouse's or dependent's choosing to any hearing conducted pursuant to this chapter without prior approval of the administrative law judge. The commission may not adopt any rule that in any way restricts an employee's rights, or if the employee is deceased, the employee's estate's, surviving spouse's or dependent's rights, under this subsection. END_STATUTE

Sec. 2. Section 23-1026, Arizona Revised Statutes, is amended to read:

START_STATUTE23-1026. Periodic medical examination of employee; effect of refusal or obstruction of examination or treatment

A. An employee who may be entitled to compensation under this chapter shall submit himself the employee for medical examination from time to time at a place reasonably convenient for the employee, if and when requested by the commission, his the employee's employer or the insurance carrier. A place is reasonably convenient even if it is not where the employee resides if it is the place where the employee was injured and the employer or the insurance carrier pays in advance the employee's reasonable travel expenses, including the cost of transportation, food, lodging and loss of pay, if applicable.

B. The request for the medical examination shall fix a time and place having regard to the convenience of the employee, his the employee's physical condition and his the employee's ability to attend. The employee may have a physician present at the examination if procured and paid for by the employee.

C. If the employee refuses to submit to the medical examination or obstructs the examination, his the employee's right to compensation shall be suspended until the examination has been made, and no compensation shall be payable during or for such period.

D. A physician who makes or is present at the medical examination provided by this section may be required to testify as to the result of the examination. The physician is not subject to a complaint for unprofessional conduct to the physician's licensing board if the complaint is based on a disagreement with the findings and opinions expressed by the physician as a result of the examination.

E. On appropriate application and hearing, the commission may reduce or suspend the compensation of an employee who persists in unsanitary or injurious practices tending to imperil or retard his the employee's recovery, or who refuses to submit to medical or surgical treatment reasonably necessary to promote his the employee's recovery.

F. An employee shall be excused from attending a scheduled medical examination if the employee requests a protective order and the administrative law judge finds that the scheduled examination is unnecessary, would be cumulative or could reasonably be timely scheduled with an appropriate physician where the employee resides. If a protective order is requested the burden is on the employer or insurance carrier to establish that a medical examination should be scheduled at a place other than where the employee resides. If an employee has left this state and the employer or insurance carrier pays in advance the employee's reasonable travel expenses, including the cost of transportation, food, lodging and loss of pay, if applicable, the employer or insurance carrier is entitled to have the employee return to this state one time a year for examination or one time following the filing of a petition to reopen.

G. If a physician performs an examination under this section and is provided data from the Arizona state board of pharmacy pursuant to title 36, chapter 28, the physician may disclose that data to the employee, employer, insurance carrier and commission.

H. A physician who performs an examination under this section and any other physician who testifies at an employee's hearing under this chapter regarding the employee's condition must have expertise in diagnosing and treating the employee's specific injury. END_STATUTE