Special Action - Industrial Commission ICA Claim No.
20170470053 Insurer No. 0773-WC-17-0000369 LuAnn Haley,
Administrative Law Judge.
& Forman P.C., Tucson By Robert J. Forman Counsel for
Industrial Commission of Arizona, Phoenix By Jason M. Porter
Counsel for Respondent
Moeller Law Office, Tucson By M. Ted Moeller Counsel for
Espinosa authored the opinion of the Court, in which Judge
Eppich and Judge Brearcliffe concurred.
Jane Sherring appeals the determination of the Administrative
Law Judge ("ALJ") that she was not an employee at
the time of her injury and therefore was not entitled to
workers' compensation. We affirm the ALJ's award.
and Procedural Background
"We view the evidence in the light most favorable to
affirming the Industrial Commission's findings and
award." City of Tucson v. Indus. Comm'n,
236 Ariz. 52, ¶ 2 (App. 2014). On January 4, 2017,
Sherring accepted the City of Tucson's conditional offer
of employment to be a Parking Service Agent. The City's
offer stated that it was contingent upon "successful
completion of all paperwork, background investigation,
reference checks, pre-employment testing, and approval from
the Equal Opportunity Programs Division & Human
By January 13, the date on which Sherring went to a medical
center for a pre-employment physical exam, she had completed
most, if not all, of the other requirements. As part of the
exam, a medical assistant instructed Sherring to lift a box
containing "50-pound free weights" and place it on
a shelf. According to Sherring, the box was "so large
that [it] hit [her] knee, twisted [her] left knee" while
she was lifting it, but she nevertheless was able to lift it
and place it on the shelf "[t]hree or four" times.
The lift test was the last part of the physical, and while
Sherring was checking out, the doctor told her she had
"passed" the exam.
Following the physical examination, Sherring notified the
City she had completed it and was informed where to report on
her first day of work. However, she never actually began work for
the City. According to Sherring, "when [she] left [the]
appointment [her] knee was hurting pretty bad and [she] had
some large bruises on the inside of [her] thigh."
Although she initially believed "it would kind of go
away because some things just take some time to heal,"
it "got worse" and, on February 2, she informed the
City of the injury and asked if she could "go back and
see the doctor [from the pre-employment physical] to have it
checked" before starting work the following Monday. Her
start date was pushed back a couple of times, but ultimately
the City denied her request for a reasonable accommodation
and rescinded its employment offer based on her inability
"to perform the essential functions of a Parking Service
On February 3, 2017, Sherring saw an emergency room doctor
regarding her knee, and on February 10, filed a
"worker's report of injury" with the Industrial
Commission of Arizona ("ICA"). The City denied the
claim on the basis that Sherring was "not an Employee of
City of Tucson," and she requested a hearing before an
ALJ. After the hearing, the ALJ dismissed the claim upon
finding Sherring "did not sustain a compensable injury
on January 13, 2017 as she was not an employee of the [City]
on that date." The ALJ affirmed the award upon review,
and Sherring brought this statutory special action. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2)
"In reviewing ICA findings and awards, we defer to the
ALJ's factual findings but review questions of law de
novo." Landon v. Indus. Comm'n, 240 Ariz.
21, ¶ 9 (App. 2016). Sherring raises two arguments on
appeal: First, she disputes the ALJ's conclusion that she
was not an employee of the City at the time the injury
occurred. Second, she urges us to find entitlement to
workers' compensation as a matter of public policy when ...