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Landon v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

June 9, 2016

CURTIS C. LANDON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, QUEMETCO METALS LIMITED, INC., Respondent Employer, LIBERTY INSURANCE CORP., Respondent Carrier.

         Special Action - Industrial Commission ICA Claim Nos. 20121-150492** 20121-701361* Carrier Claim Nos. WC608-000000** WC608-A25774*, The Honorable Rachel C. Morgan, Administrative Law Judge

          Robert Hommel, P.C., Scottsdale By Robert J. Hommel Counsel for Petitioner.

          Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent.

          Klein, Doherty, Lundmark, Barberich & LaMont, P.C, Phoenix By Lisa M. LaMont Counsel for Respondent Employer and Carrier.

          Chief Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.

          OPINION

          BROWN, CHIEF JUDGE.

         ¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review denying Curtis C. Landon's request for temporary partial disability benefits for nine months. The principal issue before us is whether Landon was precluded from receiving such benefits because a physician had released him to full-duty employment at the start of the nine-month period. As discussed below, a claimant released to full-duty employment is not precluded from receiving temporary partial disability benefits where the claimant can show a loss of earning capacity. Because the administrative law judge ("ALJ") failed to make necessary findings as to whether Landon suffered a reduced earning capacity during the nine-month period, we set aside the award.

         BACKGROUND[1]

         ¶2 Quemetco Metals Limited, Inc. ("Quemetco"), hired Landon in 2005. Landon's work involved casting products for use in mining and frequently required him to lift between 65 and 100 pounds above his shoulder level. This work gradually caused Landon to develop bilateral shoulder injuries. Landon filed workers' compensation claims for benefits in 2011 for his left shoulder (with a March 15, 2011 stipulated injury date) and 2012 for his right shoulder (with a November 30, 2011 stipulated injury date), which the carrier denied. Landon timely protested those denials.

         ¶3 While Landon's claims were pending, Brian Matanky, M.D., performed surgery on Landon's left shoulder on March 8, 2012 and his right shoulder on May 31, 2012. When Landon attempted to start working "light duty" for Quemetco some months later, at a time when his claims were still in "denied" status, he was told he could return to work only if released without restrictions. Because Landon could no longer afford to remain off work, he requested a release to full duty. Dr. Matanky conducted a medical examination and signed a full-duty release on September 4, 2012.

         ¶4 Landon promptly returned to Quemetco, but was then told his position had been filled by another individual and there was no other position for him at Quemetco. During the next few months, Landon obtained a number of short-term jobs through temporary agencies with other employers, earning lower wages than he earned at Quemetco. Although Landon experienced pain and weakness in both shoulders while working, he did not return to see Dr. Matanky until May 2013, after his workers' compensation claims were found compensable in April 2013. In June 2013, Dr. Matanky found that Landon's right shoulder condition had substantially deteriorated and he placed Landon on no-work status.

         ¶5 Landon then filed a hearing request for temporary partial disability benefits pursuant to Arizona Revised Statutes ("A.R.S.") section 23-1061(J). At the hearing, Dr. Matanky testified that as of September 4, 2012, Landon had reported 85 percent improvement, but still had some pain, stiffness, and swelling, and was therefore not finished with his recovery. Ultimately, however, Dr. Matanky concluded that because Landon's condition had improved significantly post-surgery, he issued a full-duty release, but with instructions for re-evaluation after four weeks if needed. Quemetco took the position that because Dr. Matanky had released Landon without any employment restrictions, Landon was precluded from receiving temporary partial disability benefits from September 4, 2012 to June 3, 2013.

         ¶6 Landon acknowledged at the hearing that when he attempted to return to work in September 2012, he would not have been able to lift 65 to 100 pounds over his head, but he thought Quemetco might put him in the "package area, " where heavy lifting would not be required. Landon explained he had received short-term disability payments for several months after the surgeries, but that he asked Dr. Matanky for the full-duty release because those payments were scheduled to end on September 4. According to Landon, he lost his health insurance and transportation when his job was terminated, and thus was unable to return to see Dr. Matanky until his workers' compensation claims were found compensable in April 2013.

         ¶7 After the parties submitted post-hearing memoranda, the ALJ ruled in relevant part as follows:

[Landon] testified that after his bilateral surgeries, he requested a full duty work release from Dr. Matanky because [Quemetco] would not allow him to return to work without one. . . . When [Landon] presented his full release to [Quemetco], he was informed his job was terminated and his position filled. Subsequently, [Landon] worked for temporary employment agencies performing various jobs, . . . [and] had physical problems working because of pain and weakness in both of his shoulders[.]
I find that [Landon] was medically released to full duty without restrictions to his date of injury job effective September 4, 2012. I further find that [Landon] failed to meet his burden of proof that he was unable to perform his date of injury job as of September 4, 2012 or that he had ...

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