WANDA M. SMITH, Petitioner Employee,
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
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.
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.
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.
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.
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
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.
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