                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


               WANDA M. SMITH, Petitioner Employee,

                                  v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

      STATE OF ARIZONA DEPARTMENT OF CORRECTIONS,
                     Respondent Employer,

       THE STATE OF ARIZONA – DOA RISK MANAGEMENT,
                       Respondent Carrier.

                         No. 1 CA-IC 18-0060
                          FILED 10-29-2019

               Special Action - Industrial Commission
                    ICA Claim No. 20122-850010
                   Carrier Claim No. W201204436
      The Honorable Rachel C. Morgan, Administrative Law Judge

                        AWARD SET ASIDE


                             COUNSEL

Sarkisov & Roesch PLLC, Phoenix
By George V. Sarkisov
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent, ICA
             SMITH v. ADOC/DOA RISK MANAGEMENT
                        Opinion of the Court

Arizona Attorney General’s Office, Phoenix
By Maria A. Morlacci
Counsel for Respondent Employer and Carrier


                               OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Kenton D. Jones and Judge Jennifer B. Campbell joined.


B R O W N, Judge:

¶1          Wanda Smith seeks review of an Industrial Commission of
Arizona (“ICA”) award finding she sustained no loss of earning capacity
(“LEC”) as a result of her industrial injury. Because the award is not
supported by competent or substantial evidence, we set aside the award.

                            BACKGROUND

¶2            Smith worked for the Arizona Department of Corrections
(“DOC”) as a Correctional Officer II for approximately 22 years. In
September 2012, she injured her right (dominant) shoulder while
participating in a mandatory training exercise. The respondent carrier,
DOA Risk Management, accepted the claim for benefits. In January 2013,
Dr. Cody Olsen performed surgery on Smith’s shoulder, but she continued
to experience pain.

¶3            In 2014, Dr. Olsen recommended a second surgery. Smith
opted to forego the second surgery and returned to light duty work at the
DOC. Smith began missing substantial work, however, to care for her ill
husband and quit working at DOC in mid-2014. While her claim remained
open for active medical care, Smith moved to Texas, working for the Texas
Department of Corrections as a cook supervisor for about five months in
2015. She was unable to continue working there because the job required
heavy lifting and caused pain in her shoulder. Smith returned to Arizona
and began treatments for her shoulder with Dr. Daniel Capen. After
reviewing an updated MRI, Dr. Capen advised against a second surgery.
In 2016, he discharged Smith as medically stationary and recommended
work restrictions that precluded Smith from lifting more than 25 pounds or
anything above her head, or performing inmate takedowns if she returned
to her date-of-injury employment.


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                         Opinion of the Court

¶4            DOC and DOA Risk Management (collectively, the “State”)
referred Smith to Dr. Amit Sahasrabudhe for an independent medical
examination (“IME”). DOA Risk Management then issued a notice
terminating Smith’s temporary compensation and active medical
treatment, but confirmed that Smith’s “[i]njury resulted in [a] permanent
disability.” The file was forwarded to the ICA to calculate Smith’s LEC, if
any. The ICA issued an administrative award based on Dr. Sahasrabudhe’s
IME report, finding that Smith sustained a “general physical functional
disability” but suffered no reduction in earning capacity as a result of the
2012 injury. The administrative law judge (“ALJ”) granted Smith’s request
for a hearing as to whether she sustained an LEC.

¶5            The ALJ received testimony from Smith, Dr. Sahasrabudhe,
Dr. Capen, and labor market experts Gail Tichauer (for Smith) and Mark
Kelman (for the State). Dr. Sahasrabudhe explained that Smith’s low-grade
partial tear of the rotator cuff was within normal limits, and contrary to
Dr. Capen’s opinion, permanent work restrictions were unnecessary and
she could return to her date-of-injury employment.

¶6            Finding no reduced monthly earning capacity, the ALJ
resolved the medical opinion conflict in Dr. Sahasrabudhe’s favor and
adopted his conclusion that Smith was able to return to work without
restrictions. Based on Kelman’s opinion that Smith’s date-of-injury
employment was “readily available on a continuous basis,” the ALJ
determined she “failed to establish by a reasonable preponderance of the
credible evidence” that she had sustained a reduced monthly earning
capacity as a result of her 2012 industrial injury. The ALJ supplemented
and affirmed the award on administrative review, and Smith timely sought
judicial review in this court.

                               DISCUSSION

¶7              In reviewing the ICA’s awards and findings, we defer to the
ALJ’s factual findings but review legal conclusions de novo. Sun Valley
Masonry, Inc. v. Indus. Comm’n, 216 Ariz. 462, 463–64, ¶ 2 (App. 2007). We
will not set aside the award if it is based upon any reasonable interpretation
of the evidence; however, we cannot uphold the award if it is “not based
upon competent or substantial evidence.” Roberts v. Indus. Comm’n, 162
Ariz. 108, 110 (1989). “An ALJ must include findings on all material issues
in the award.” Landon v. Indus. Comm’n, 240 Ariz. 21, 24, ¶ 9 (App. 2016)
(citing Post v. Indus. Comm’n, 160 Ariz. 4, 7 (1989)).




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              SMITH v. ADOC/DOA RISK MANAGEMENT
                         Opinion of the Court

¶8             When calculating an LEC, the goal is to “determine as near as
possible whether in a competitive labor market the subject in [her] injured
condition can probably sell [her] services and for how much.” Roberts, 162
Ariz. at 110 (citation omitted). The burden of proving an LEC initially is on
the claimant, “which requires establishing [her] inability to return to
date-of-injury employment and either to make a good faith effort to obtain
other suitable employment or to present testimony from a labor market
expert to establish [her] earning capacity.” Landon, 240 Ariz. at 26–27, ¶ 18.
If the claimant meets this initial burden of proof, the burden shifts to the
employer to prove “there is employment reasonably available which the
claimant could reasonably be expected to perform.” Roberts, 162 Ariz. at
110; Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580–82 (1983).

¶9           Smith argues the ALJ’s decision award is legally insufficient
because it lacks evidence showing her date-of-injury employment was
reasonably available. She contends that a reasonable-availability inquiry
must be addressed in an LEC analysis, “even if the injured worker does not
have any physical restrictions resulting from the industrial injury.” The
State argues the ALJ acted within her authority in adopting
Dr. Sahasrabudhe’s opinions, which were the foundation of the LEC
finding.

¶10           We turn first to whether Smith met her initial burden. The
ALJ did not make any finding that Smith failed to carry her initial burden
that she would be unable to perform the duties of a Correctional Officer II,
her date-of-injury position. See Landon, 240 Ariz. at 29, ¶ 24 (noting that the
ALJ made no findings as to whether the claimant met the burden of
showing inability to return to date-of-injury employment or whether a
good faith effort was made to find other suitable employment). Nor did the
ALJ make a finding rejecting Smith’s testimony that she made efforts to find
employment and was unsuccessful. Instead, the ALJ accepted
Dr. Sahasrabudhe’s opinion that Smith had no work restrictions as the
foundation for its decision, which in turn formed the basis for Kelman’s
opinion that Smith would be eligible for rehire at her date-of-injury job. By
failing to address whether Smith met the initial burden of proof, the ALJ
overlooked the principle that even if a claimant does not have injury-related
work restrictions, the claimant may still receive an LEC award. See A.R.S.
§ 23–1044(G)(2) (stating that an “injured employee may present evidence
showing that . . . inability to obtain suitable work is due, in whole or in part,
to the industrial injury or limitations resulting from the injury”); Landon,
240 Ariz. at 27, ¶ 18 (recognizing that a claimant is not required to prove
that an industrial injury was the sole cause of a loss of earning capacity).
Regardless, the ALJ proceeded to analyze whether suitable employment

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                        Opinion of the Court

was reasonably available, an analysis that occurs only once the burden
shifts to the respondent employer or carrier. See Zimmerman, 137 Ariz. at
580–81.

¶11           Notwithstanding the ALJ’s lack of a specific finding
regarding Smith’s initial burden, the record shows Smith presented
evidence showing she could not perform the work required to return to her
date-of-injury employment, and she made a good faith effort to obtain other
suitable employment. Smith returned to her job at the DOC after her injury
but was assigned light duty only. Rather than working closely with inmates
as she did before her injury—escorting them and doing pat-downs—she
was assigned to the security desk to search employees’ belongings as they
entered and exited the building. As to her ability to return to her job as a
Correctional Officer II, the ALJ noted that Smith “testified that she cannot
return to her date of injury job because she is unable to hold a gun because
of right shoulder weakness.” Smith submitted into evidence a job
description for her date-of-injury employment confirming that officers
“[e]mploy[] weapons or force to maintain discipline and order among
prisoners, if necessary.” She testified about problems she encountered
handling a gun after the injury, including her inability to hold it “straight
out because my shoulder was too weak.”

¶12            Smith testified she made efforts to obtain work when she
returned to Arizona from Texas, including applying to Yavapai Plumbing
and Heating, Pure Water, Inc., Residence Inn, Motel 8, Helping Hands
In-Home Care, Yavapai Regional Medical Center, and Dick’s Sporting
Goods, but was unsuccessful in even obtaining an interview. See Roberts,
162 Ariz. at 110 (concluding the claimant met his burden to show he made
a reasonable effort to secure employment by testifying he tried to obtain
work but was unsuccessful). Smith also testified she thought she was
having a hard time finding a job because of her age—she was 69 at the time
of these job searches. Based on this record, Smith met her initial burden.

¶13          With the burden shifting to the State, Smith argues the ALJ
erred by finding her date-of-injury employment was reasonably available
because insufficient evidence supports that finding. Determining the
amount of an injured worker’s LEC, if any, is governed in part by A.R.S. §
23–1044, which requires consideration of, “among other things, to 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 after the injury, any wages received for work
performed after the injury and the age of the employee at the time of
injury.”

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              SMITH v. ADOC/DOA RISK MANAGEMENT
                         Opinion of the Court

¶14            To prove with reasonable certainty that Smith could secure a
job, the State was required to present evidence of, among other things, “the
competition for available positions . . . and the likelihood that employers
will hire someone with a previous disability although [she] is now fully
qualified to perform the work.” Dean v. Indus. Comm’n, 113 Ariz. 285, 287
(1976). “[E]vidence of the number of openings, without evidence of the
number of applicants or the willingness of the employers to hire someone
with a previous disability” is insufficient to sustain an award. Roberts, 162
Ariz. at 111 (citing Roach v. Indus. Comm’n, 137 Ariz. 510, 512–14 (1983)). The
State also needed to show how Smith’s prior injury will affect her ability to
compete for the available positions. See Roach, 137 Ariz. at 514; Dean, 113
Ariz. at 287.

¶15            The ALJ relied on Kelman’s opinion that work in Smith’s
date-of-injury employment as a corrections officer is “readily available on
a continuous basis.” In his written report, Kelman identified several
suitable employment options based on Smith’s background and ability to
work, but the only option he presented that resulted in no LEC was the
date-of-injury employment. Other positions available at the DOC resulted
in an LEC and a monthly entitlement of $230.09. Kelman spoke with a
recruiter at the DOC to inquire about the availability of correctional officer
positions at two facilities. He testified there are “hundreds” of openings for
correctional officers, and based on his experience, “there is a strong need
for people in facilities to be correction officers.”

¶16           Kelman acknowledged, however, that he did not speak with
anyone at the DOC to see if Smith’s date-of-injury job as a Correctional
Officer II would be available for Smith or if she was actually eligible for
rehire. Nor did he identify how many applicants there were for that
position. He listed the job title as “correctional officer” and noted that
“4/6” are “qualified applicants.” Notably, he failed to clarify whether only
six people applied for the job total and four of them were qualified, or
whether “4/6” was an estimate of the ratio of qualified to unqualified
applicants. The number of openings alone fails to tell us anything about
whether a job is “reasonably available.” See Roach, 137 Ariz. at 513–14
(explaining the “flaw in basing the job availability on the bald statement
that any specific number of openings has occurred”).

¶17           Kelman also failed to address the willingness of the DOC to
hire someone with a previous work-related injury, like Smith. In Roach, our
supreme court set aside the ALJ’s award because there was no testimony
offered on the willingness of the Arizona State Prison to hire a person with
a prior work-related injury. 137 Ariz. at 514–15. The court “assume[d] that

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              SMITH v. ADOC/DOA RISK MANAGEMENT
                         Opinion of the Court

agencies of this state do not practice employment discrimination,” but it
found “nothing affirmative in the record regarding the likelihood of the
Arizona State Prison to hire persons with previous work-related injuries.”
Id. Because the record here lacks any evidence that DOC would hire a
person with a previous industrial injury as a Correctional Officer II, the
State failed to meet its burden to show that Smith’s date-of-injury
employment was reasonably available. See Arden-Mayfair v. Indus. Comm’n,
158 Ariz. 580, 584 (App. 1988) (finding the employer failed to sustain its
burden on an LEC claim because the record lacked evidence showing the
employee would have an equal hiring opportunity in competition with
others given his previous industrial injury).

¶18            Nothing in the award shows the ALJ considered Smith’s age
at the time of her injury, as required by A.R.S. § 23–1044(D). She was 64
when the injury occurred, 69 when it became stationary, and 70 at the time
she testified. The State has not identified, nor have we located, any
evidence in the record showing a Correctional Officer II job was reasonably
available to a 64-year-old employee with a previous industrial injury and a
permanent impairment.

¶19           Additionally, the record is silent as to whether the ALJ
considered Smith’s age during the pendency of her LEC claim—the time
during which she would be expected to apply for a Correctional Officer II
position. The State argues Smith’s current age is not relevant because it is
not specifically addressed in A.R.S. § 23–1044(D), which provides in part
that “consideration shall be given, among other things, to . . . the age of the
employee at the time of the injury.”

¶20            Based on the statute’s plain language, the list of relevant
factors is not exhaustive. See A.R.S. § 23–1044(D). Thus, the statute does
not preclude consideration of Smith’s age (as of the time of her job search
or when she testified) as relevant to the determination of whether her date-
of-injury employment was reasonably available. Given Smith’s previous
injury and her existing permanent impairment, it is illogical to believe that
her age would not be a factor in whether DOC would be reasonably likely
to hire her as a Correctional Officer II. Cf. Zimmerman, 137 Ariz. at 582
(explaining that to establish residual earning capacity, there must be
evidence of suitable and reasonably available job opportunities that the
claimant would reasonably be expected to perform considering her
physical capabilities, age, training, and prior work experience).




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             SMITH v. ADOC/DOA RISK MANAGEMENT
                        Opinion of the Court

                             CONCLUSION

¶21           Because the record lacks substantial or competent evidence
showing that Smith’s date-of-injury employment as a Correctional Officer
II is reasonably available to her, we set aside the award.




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

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