Smith v. Indus. Comm’n of Ariz. (10/29/2019)

December 9, 2019

Court of Appeals Division One holds that an administrative law judge’s decision on loss of earning capacity must include specific findings regarding reduced earning capacity under A.R.S. § 23-1044(D) and relevant, non-statutory, age-related facts.

An employee in the Arizona Department of Corrections suffered an injury while participating in a mandatory training exercise.  Her carrier accepted the employee’s claim for temporary benefits, the employee underwent surgery to repair the injury, but she was unable to continue her employment level due to lingering pain.  The employee’s temporary benefits were terminated, and she sought a determination of loss of earning capacity from the Industrial Commission of Arizona.  The Industrial Commission concluded that she had suffered a functional disability without a loss of earning capacity.  The matter went to a hearing before an ALJ, who took medical expert and employer testimony, ruled there was no loss of earning capacity, and affirmed the Industrial Commission’s award on administrative review.

On appeal, the Court of Appeals set aside the Industrial Commission’s award because the ALJ failed to include findings on whether date-of-injury employment was available to the employee.  The Court of Appeals concluded that, despite the lack of a specific finding by the ALJ, the employee had met her initial burden of proving that she had suffered a loss of earning capacity and could not perform the work to return to the date-of-injury appointment.  Next, the Court of Appeals concluded that the ALJ erred in its determination of loss of earning capacity by failing to address the factors in A.R.S. § 23-1044(D).  In particular, the ALJ took no evidence indicating that the Department of Corrections would hire an individual with the employee’s injury history.  The Court of Appeals also concluded that the ALJ erred in failing to consider age-related facts relevant to the reasonable availability of work, including the non-statutory fact of her age during pendency of the loss of earning capacity claim.

Judge Brown authored the opinion; Judges Jones and Campbell joined.