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Sherring v. The Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division

August 9, 2018

Jane Sherring, Petitioner Employee,
v.
The Industrial Commission of Arizona, Respondent, City of Tucson, Respondent Employer.

          Special Action - Industrial Commission ICA Claim No. 20170470053 Insurer No. 0773-WC-17-0000369 LuAnn Haley, Administrative Law Judge.

          Dix & Forman P.C., Tucson By Robert J. Forman Counsel for Petitioner Employee

          The Industrial Commission of Arizona, Phoenix By Jason M. Porter Counsel for Respondent

          Moeller Law Office, Tucson By M. Ted Moeller Counsel for Respondent Employer

          Judge Espinosa authored the opinion of the Court, in which Judge Eppich and Judge Brearcliffe concurred.

          OPINION

          ESPINOSA, Judge.

         ¶1 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.

         Factual and Procedural Background

         ¶2 "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 Resources."

         ¶3 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.[1] 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.

         ¶4 Following the physical examination, Sherring notified the City she had completed it and was informed where to report on her first day of work.[2] 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 Agent."

         ¶5 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) and 23-951.

         Discussion

         ¶6 "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, ΒΆ 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 ...


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