specially concurring:
While I agree that the award in this case must be set aside for the failure of the administrative law judge to apply the proper legal test for suspension of benefits, I do not agree with the inference that the carrier has the burden of showing why A.R.S. § 23-1026 is not applicable.
My reading of the majority opinion seems to give the absolute right to a permissive out-of-state claimant to have medical examinations out of state and the burden is on *129the carrier to show why such a right should not be exercised. To put this matter in proper perspective, what basically the court has before it, is a claimant who is injured in this state, is still in a temporary status (i.e., continuing medical treatment is necessary), is allowed to go out of state under an order of the Commission that she “shall return at her own expense if so directed by the defendant insurance carrier”, and who does not attend a medical examination in this state, for which the carrier seeks suspension of benefits.
Out of this factual picture, the court is faced with the determination of the various legal rights of the parties. Up front, obviously, the carrier has the right to have the claimant medically examined. A.R.S. § 23-1026. Equally as obvious, is the right of the claimant, under the same statute, to have the examination conducted at a time and place “reasonably convenient for the employee”. A.R.S. § 23-1026(B). What is presented in this case is the fact that the claimant is presently residing outside the state of Arizona, pursuant to an order of the Commission. A.R.S. § 23-1071. In my opinion, the resolution of this issue requires that A.R.S. § 23-1026 (requiring medical examinations at a place reasonably convenient to the employee) and A.R.S. § 23-1071 (requiring permission of the Commission to leave the state while the necessity of medical treatment continues), be reconciled insofar as practical to do so.
Normally, the injured worker, during the period of temporary disability is actively receiving medical treatment from local doctors. It is in the carrier’s interest to see that such treatment is effectively administered so that the period of temporary disability (with its concomitant higher rate of compensation) not be unduly extended or that permanent disability not be enhanced for lack of proper treatment. The claimant who leaves the state and thus the supervision of the treatment by the carrier, thwarts that interest. A.R.S. § 23-1071 recognizes this legitimate interest by requiring written permission of the Commission to leave the state. Waxler v. Industrial Commission, 116 Ariz. 213, 568 P.2d 1111 (App.1977).
Considering the interest sought to be protected, it appears to me that in a proper case, the Commission might well condition the permission of the claimant in leaving the state, by requiring the claimant to return to the state at his or her own expense, as was done in this case. After all, it is the claimant who is seeking a resident status which has the potential for disrupting the orderly administration of the claim, and I see no reason why the Commission cannot place a reasonable burden on the claimant who seeks such a benefit.
On the other hand, the claimant who has properly applied for and received permission to leave the state should not be required, willy nilly, to return to the state at the beck and call of the carrier if legitimate reasons exist for not so returning. This principle is embodied in A.R.S. § 23-1026. I would balance the rights of both parties by a shifting of the burden of proof.
As the majority correctly points out, the carrier, when attempting to suspend benefits for failure to attend medical examinations, has the burden of persuasion on this issue. However, that prima facie burden can be satisfied by showing that the claimant failed to appear at a duly noticed medical examination. Edmunds v. Industrial Commission, 126 Ariz. 486, 616 P.2d 946 (App.1980). While the in-state claimant is entitled to the full protection of A.R.S. § 23-1026, and the carrier bears the burden of showing good cause for examining a claimant at some locale other than the claimant’s place of residence, Miceli v. Industrial Commission, 135 Ariz. 71, 659 P.2d 30 (1983), in my opinion, since the permissive out-of-state claimant receives the benefit of moving out of state, the burden of going forward with the proof as to why he or she should not return to Arizona shifts to the claimant. This position appears to be contrary to the majority opinion. I do agree with the majority, however, that the administrative law judge erred in solely relying upon the conditional order of the Commission in upholding the suspension of *130the benefits in this case. Rather, the administrative law judge must determine from all the facts whether the claimant’s refusal to return to Arizona for the psychiatric examination was reasonable. I further agree with the majority that the possibility of the carrier completely terminating temporary benefits based upon Dr. Taber’s report is not a legally sufficient ground for suspending benefits for failure to attend the medical examination.
Finally, I do not agree that the dicta quoted by the majority from Miceli v. Industrial Commission, supra, is binding in this matter. Miceli, refers to Meva Corporation v. Industrial Commission, 15 Ariz. App. 20, 485 P.2d 844 (1971), for the proposition that a reasonable showing of cause must be made before an order could be entered forcing an injured worker who has left the state to return to Arizona for examination. Meva Corp. involved a claimant who was on permanent disability status and thus did not need the permission of the Commission to leave the state. The carrier in that case was attempting to have the claimant returned to Arizona for an unauthorized purpose, vocational rehabilitation. It is in this context that the Meva Corp. court referred to a reasonable showing of cause, that is, a legally permissible purpose. Thus, not only is the Miceli holding in regard to out of state claimants dicta, the case relied upon does not support the type of reasonable showing of cause referred to in Miceli. For these reasons, I do not find the dicta quoted from Miceli to be controlling.
I agree the award must be set aside.