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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     PATRICIA PALLADINO, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

      FAIRMONT SCOTTSDALE PRINCESS, Respondent Employer,

      AMERICAN ZURICH INSURANCE CO., Respondent Carrier.

                              No. 1 CA-IC 15-0011
                                FILED 2-16-2016


                   Special Action – Industrial Commission
                        ICA Claim No. 20132-240135
                       Carrier Claim No. 2080291760

                 Robert F. Retzer, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Law Office of Stephen L. Weiss, Phoenix
By Stephen L. Weiss
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Industrial Commission of Arizona
Lester, Norton & Brozina, P.C., Phoenix
By Rachel P. Brozina, Steven C. Lester, Christopher S. Norton
Counsel for Respondents Employer and Carrier



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1           This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision on review for an unscheduled
permanent partial disability. One issue is presented: whether the
administrative law judge (“ALJ”) erred by basing the award on full-time
employment. Finding no error, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Patricia Palladino injured her back while employed as an
aesthetician by the respondent employer, Fairmont Scottsdale Princess
(“Fairmont”). She filed a workers’ compensation claim that was accepted
for benefits. The ICA entered a notice of average monthly wage in the
amount of $2,810.44. Palladino received conservative medical treatment,
and her condition became stationary with ongoing physical limitations.

¶3            The respondent carrier, American Zurich Insurance
Company (“American”), closed Palladino’s claim with an unscheduled
permanent partial impairment and a supportive care award. The ICA
then issued its findings and award for unscheduled permanent partial
disability benefits. It found Palladino had sustained an unscheduled 16%
permanent partial impairment, which resulted in a 31.36% loss of earning
capacity and entitled her to $484.76 per month in disability benefits.
Palladino timely protested the findings and award and requested a
hearing.

¶4           The ALJ heard testimony from Palladino, her supervisor,
Fairmont’s human resources manager, and two labor market experts. The
ALJ thereafter entered an award for an unscheduled permanent partial
disability. Palladino requested review, but the ALJ affirmed the award.



                                    2
               PALLADINO v. FAIRMONT/AM ZURICH
                       Decision of the Court

Palladino then timely sought this Court’s review. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(2),
23-951(A), and Arizona Rule of Procedure for Special Actions 10.

                             DISCUSSION

¶5            In reviewing ICA findings and awards, we defer to the ALJ’s
factual findings, but we review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in
the light most favorable to upholding the award. Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶6           Palladino contends the ALJ erred by basing her post-injury
earning capacity on full-time employment. The ALJ found:

      In reference to the number of hours the Applicant can work,
      testimony from Brennan Evans, the Manager Director of
      Well and Being Spa at Defendant Employer was that the
      Applicant was a full time employee. Further, there are no
      hourly restrictions per week on the Applicant’s ability to
      work. Therefore, the undersigned finds that jobs as a
      Receptionist for 40 hours a week at $9.67 per hour are both
      suitable and available to the Applicant. The undersigned
      finds [that] Elias v. Industrial Commission . . . is
      distinguishable from this case and that in Elias the Applicant
      was a Nurse who only sought part-time work which is not
      the case here. . . .

¶7            The burden of proving a loss of earning capacity (“LEC”) is
on the claimant. See, e.g., Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580
(1983). A claimant must establish an inability to return to date-of-injury
employment and either make a good faith effort to obtain other suitable
employment or present testimony from a labor market expert to establish
her residual earning capacity. See D’Amico v. Indus. Comm’n, 149 Ariz. 264,
266 (App. 1986). In determining residual earning capacity, the ALJ must
consider

      any previous disability, the occupational history of the
      injured employee, the nature and extent of the physical
      disability, the type of work the injured employee is able to
      perform subsequent to the injury, any wages received for
      work performed subsequent to the injury and the age of the
      employee at the time of injury.


                                    3
               PALLADINO v. FAIRMONT/AM ZURICH
                       Decision of the Court


See A.R.S. § 23-1044(D).

¶8            Fairmont made reasonable accommodations to adapt
Palladino’s job duties to physical limitations resulting from the industrial
injury. Palladino attempted to return to her job as an aesthetician but was
physically unable to perform necessary duties. Palladino testified she
averaged 30 hours of work per week at Fairmont’s spa. However, Brennan
Evans, managing director of the spa, testified Palladino was a full-time
aesthetician. He explained:

      A. [Evans] We . . . bid our work schedule as we need to to
      meet the needs of our clientele. And when we have a bid,
      we bid that based off of seniority, so the most senior person
      gets selection of shifts first, and we put together what is their
      work schedule from those bidded shifts.

      Q. [By Ms. Brozina] Tell me what goes into determining
      somebody’s seniority status.

      A. Seniority is considered to be the hire date into the
      position that they are currently in.

      Q. And what was Ms. Palladino’s seniority status when she
      was employed with you?

      A. I believe she was number three.

      Q. So number three out of roughly 13?

      A. Correct.

      Q. Could you tell us how you determine which employee
      performs what service or gets whatever customer is
      scheduled for the day?

      A. . . . [W]e basically book based off of seniority on the most
      senior next available person that does that service.

      ...

      Q. So what do your employees do if they’re on the premises
      but they don’t have a service booked?




                                     4
               PALLADINO v. FAIRMONT/AM ZURICH
                       Decision of the Court

      A. They are required to be readily available in case we have
      a walk-in that decides to book a service. We have a break
      room for them to stay in where we have a TV. They can read
      books, they can relax with iPads and be at the ready.

¶9           Fairmont also presented labor market testimony from Lisa
Clapp. Clapp testified that a full-time aesthetician at Fairmont typically
worked seven-and-a-half hour shifts, five days a week. Depending on the
season and spa bookings, shifts could be longer or shorter.

¶10           The testimony by Clapp and Evans supports the ALJ’s
conclusion that Palladino was a full-time employee, notwithstanding
variances in her hours. Palladino had no work restrictions at the time of
her industrial injury and had high seniority for spa bookings. The
evidence further established that Palladino remains physically capable of
working full-time within her industrially related physical limitations. See,
e.g., Hoffman v. Brophy, 61 Ariz. 307, 314 (1944) (claimant has a duty to
mitigate her damages by minimizing any loss of earnings).

                             CONCLUSION

¶11          For the foregoing reasons, we affirm the award.




                                 :ama




                                     5
