                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


           KARSTEN MANUFACTURING, Petitioner Employer,

              SENTRY CLAIMS SERVICE, Petitioner Carrier,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                 ANICETO SIGALA, Respondent Employee.

                             No. 1 CA-IC 15-0086
                               FILED 9-29-2016


                  Special Action - Industrial Commission

                      ICA Claim No. 20101-180537
                      Carrier Claim No. 51C848829
                 Layna Taylor, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Jardine Baker Hickman & Houston, Phoenix
By K. Casey Kurth
Counsel for Petitioners Employer/ Carrier

Industrial Commission of Arizona, Phoenix
By Jason Porter
Counsel for Respondent
Snow Carpio & Weekley, PLC, Phoenix
By Chad T. Snow
Counsel for Respondent Employee



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for permanent partial
disability benefits in favor of Aniceto Sagala (Claimant). The petitioner
employer, Karsten Manufacturing (Karsten) argues the administrative law
judge (ALJ) improperly refused to consider its December 2014 offer of
employment to Claimant. Because the offer of employment was untimely
produced after the close of evidence and the evidence of record supports
the ICA award, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           Claimant worked for twenty-five years at Dolphin Precision
Investment Castings, an independent subsidiary of Karsten. In April 2010,
Claimant injured his right shoulder while lifting wheels weighing up to 150
pounds each. Claimant filed a workers’ compensation claim, which was
accepted for benefits by the petitioner carrier, Sentry Claims Service
(Sentry).

¶3            Claimant attempted conservative medical treatment but
ultimately underwent two shoulder surgeries performed by Evan
Lederman, M.D., a board certified orthopedic surgeon. In February 2013,
after Claimant completed rehabilitation therapy, Dr. Lederman found him
medically stationary and released him to return to work with physical
limitations. The ICA entered its findings and award, determining Claimant

1       We view the evidence in the light most favorable to upholding the
ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002)
(citing Salt River Project v. Indus. Comm’n, 128 Ariz. 541, 544-45 (1981)).




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                     KARSTEN/SENTRY v. SIGALA
                         Decision of the Court

suffered no loss of earning capacity (LEC) and therefore did not qualify for
additional compensation. See Ariz. Rev. Stat. (A.R.S.) § 23-1047(A).2
Claimant timely protested.

¶4            At two separate hearings, the ALJ heard testimony from
Claimant, two of his supervisors, and Dr. Lederman. She also considered
labor market reports from Richard A. Prestwood and Rebecca Lollich. The
ALJ then entered an award for unscheduled permanent partial disability
benefits. Karsten timely requested administrative review and asked the
ALJ to reopen the hearings to allow additional evidence regarding a written
offer of employment it had made to Claimant in December 2014. The ALJ
supplemented and affirmed the award, declining to reopen the evidence to
consider the untimely offer of employment. Karsten timely appealed. 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

¶5            On appeal, Karsten argues the evidence does not support the
ALJ’s award of permanent partial disability benefits because she failed to
consider the December 2014 written offer of employment in determining
the LEC. Our review is limited to determining whether the ALJ acted
“without or in excess of its power” in doing so and whether the findings of
fact support the ALJ’s decision upon review. A.R.S. § 23-951(B). We defer
to the ALJ’s factual findings, but review questions of law de novo. Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003) (citing PFS v. Indus.
Comm’n, 191 Ariz. 274, 277 (App. 1997)).

¶6            When establishing a claimant’s LEC, the ALJ must determine
“as near as possible” whether the claimant can sell his services in the open,
competitive labor market, and if so, for how much. Davis v. Indus. Comm’n,
82 Ariz. 173, 175 (1957). Ordinarily, the injured worker has the burden of
proving his LEC. See, e.g., Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580
(1983). The claimant can meet this burden by presenting evidence he is
unable, by virtue of his impairment, to return to date-of-injury employment
and has made a good faith effort to obtain other suitable employment. See
D’Amico v. Indus. Comm’n, 149 Ariz. 264, 266 (App. 1986) (quoting Franco v.
Indus. Comm’n, 130 Ariz. 37, 39 (App. 1981)) (citations omitted). If the
claimant establishes these efforts were made and were unsuccessful, the
burden of going forward with contrary evidence shifts to the employer and

2     Absent material revisions from the relevant date, we cite a statute’s
current version.


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                      KARSTEN/SENTRY v. SIGALA
                          Decision of the Court

carrier. See Zimmerman, 137 Ariz. at 580 (citations omitted). Alternatively,
the claimant may employ a labor market expert “to show the type of work
the claimant is able to perform with his industrial injuries, and the amount
which would be earned in such employment.” D’Amico, 149 Ariz. at 266
(quoting Franco, 130 Ariz. at 39).

¶7            In this case, Claimant was not able to return to his date-of-
injury employment as a result of the residual physical limitations of his
industrial injury. Dr. Lederman released him to return to work, but
restricted him from lifting more than twenty pounds or any amount of
weight overhead. In response to a video of an employee grinding golf club
heads, Dr. Lederman testified Claimant could only perform the task, which
required repetitive motion, with frequent breaks and for a limited number
of hours per shift.

¶8            Claimant returned to modified work at Karsten, where he was
assigned five hours of sandblasting and five hours of grinding during a ten-
hour shift. Claimant was not provided with frequent breaks and, in fact,
was urged to work more quickly; during the workday, Claimant received
two twelve-minute breaks and a thirty-minute lunch. He experienced
increasing shoulder pain, which he reported to his supervisor. Claimant
testified he feared additional injury to his shoulder because Karsten
required him to work in excess of Dr. Lederman’s recommended physical
limitations.

¶9             Claimant returned to Dr. Lederman in January and February
2014. At that time, he reported Karsten was not respecting his physical
limitations and he had increasing shoulder pain. In February 2014, Dr.
Lederman provided Claimant with an additional physical limitation of two
hours of pushing and pulling at the grinding belts. When Claimant
provided Karsten with this new limitation, he was sent home from work,
and, at the time of the ICA hearings, had not been contacted to return.

¶10            Although Claimant presented testimony from Prestwood
regarding his residual earning capacity, the ALJ adopted the opinion of
Lollich. Lollich testified Claimant’s most likely employment would be in a
light janitorial capacity earning a roll-back wage of $7.38 to $8.00 per hour,
for a post-injury earning capacity of $1,332.83 per month and monthly
disability benefits of $1,084.49. In accordance with this opinion, the ALJ
awarded Claimant monthly permanent disability benefits of $1,084.49.

¶11           In its request for review, Karsten asked the ALJ to reopen the
hearings so it could present new evidence of an offer of employment made



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                     KARSTEN/SENTRY v. SIGALA
                         Decision of the Court

to Claimant in December 2014. On administrative review, the ALJ declined
to reopen the hearings to consider the new evidence, noting she had
subpoenaed Peter Poleon, the Karsten representative who had made the
December 2014 employment offer, three separate times and he never
appeared to testify.

¶12            Pursuant to Arizona Administrative Code (A.A.C.) R20-5-
155.B, non-medical records must be filed at the ICA at least fifteen days
before the first hearing. A continued hearing to present additional evidence
may be requested at the conclusion of the last scheduled hearing, but is
granted at the ALJ’s discretion. See A.A.C. R20-5-156.B. The ALJ may deny
the request if it appears that, “with the exercise of due diligence, the
evidence or testimony could have been produced or the evidence or
testimony would be cumulative, immaterial, or unnecessary.” A.A.C. R20-
5-156.C.

¶13           Here, the record reflects Karsten knew about Claimant’s
revised physical limitations in February 2014 when it sent Claimant home
until he could obtain additional clarification of the two-hour push-pull
restriction. ICA hearings were conducted in June and July 2014, and the
hearing record did not close until August 2014. Although Karsten
acknowledges the four-month gap between the close of the hearings and its
new offer of employment, it provides no explanation for the delay. Based
upon these facts, we conclude the ALJ did not abuse her discretion by
refusing to schedule a continued hearing.

                              CONCLUSION

¶14          The ALJ’s award and decision upon review is affirmed.




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




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