CURTIS C. LANDON, Petitioner,
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, QUEMETCO METALS LIMITED, INC., Respondent Employer, LIBERTY INSURANCE CORP., Respondent Carrier.
Action - Industrial Commission ICA Claim Nos. 20121-150492**
20121-701361* Carrier Claim Nos. WC608-000000**
WC608-A25774*, The Honorable Rachel C. Morgan, Administrative
Hommel, P.C., Scottsdale By Robert J. Hommel Counsel for
Industrial Commission of Arizona, Phoenix By Andrew F. Wade
Counsel for Respondent.
Doherty, Lundmark, Barberich & LaMont, P.C, Phoenix By Lisa
M. LaMont Counsel for Respondent Employer and Carrier.
Judge Michael J. Brown delivered the opinion of the Court, in
which Presiding Judge Samuel A. Thumma and Judge Patricia A.
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.
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.
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.
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.
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.
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.
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 ...