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Smith v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

October 29, 2019

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.

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

         AWARD SET ASIDE

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

          Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent, ICA

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

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

          OPINION

          BROWN, 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.

         ¶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 ...


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