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Amitrano v. Indus. Comm'n of Ariz.

Court of Appeals of Arizona, Second Division
Sep 10, 2024
2 CA-IC 2024-0001 (Ariz. Ct. App. Sep. 10, 2024)

Opinion

2 CA-IC 2024-0001

09-10-2024

LORETTA AMITRANO, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ANTHEM INC., Respondent Employer, ZURICH AMERICAN INSURANCE CO., Respondent Insurer.

Loretta Amitrano, Tucson In Propria Persona The Industrial Commission of Arizona, Phoenix By Afshan Peimani, Chief Legal Counsel Counsel for Respondent Ritsema Law, Phoenix By Deborah P. Hansen Counsel for Respondent Employer and Respondent Insurer


Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Special Action - Industrial Commission ICA Claim No. 20200300644 Insurer No. 2230437972 Cathleen Fuller, Administrative Law Judge

Loretta Amitrano, Tucson In Propria Persona

The Industrial Commission of Arizona, Phoenix By Afshan Peimani, Chief Legal Counsel Counsel for Respondent

Ritsema Law, Phoenix By Deborah P. Hansen Counsel for Respondent Employer and Respondent Insurer

Judge Vásquez authored the decision of the Court, in which Presiding Judge O'Neil and Vice Chief Judge Eppich concurred.

MEMORANDUM DECISION

VÁSQUEZ, JUDGE

¶1 In this statutory special action, Loretta Amitrano challenges the Industrial Commission of Arizona's (ICA's) decision upon review affirming the hearing and findings and award for an unscheduled permanent partial disability, in which the Administrative Law Judge (ALJ) determined she sustained no loss of earning capacity as a result of her industrial injury. On review, Amitrano argues the ALJ did not properly review her earning capacity before and after her industrial injury. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming the ALJ's findings and award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2 (App. 2007). On November 13, 2019, Amitrano was employed by Anthem Inc. as a family nurse practitioner when she slipped and fell on a wet floor, sustaining a compensable injury to her left foot, left knee, and lower back. Anthem's insurer, Zurich American Insurance Company, accepted her claim as a "medical only" claim.

¶3 In October 2021, Amitrano's claim was closed with an unscheduled, permanent partial disability. In its notice of permanent disability and request for determination of benefits, Zurich sought a "no loss of earning capacity award as [Amitrano] has returned to work with [Anthem] and [has] no loss of earning." Zurich also authorized payments for supportive care.

¶4 After "fully considering] the file," the ICA ordered that Amitrano was entitled to an award of no further compensation, finding she "sustained no loss of earning capacity" because she had returned to "the same or similar" work, or had been released to do so with restrictions, according to the June 8, 2021 report by Dr. Sharma. Amitrano challenged the findings and award, stating she had "not worked since November 2021," and requested a review hearing to determine her "loss of wages."

¶5 A formal hearing was conducted in October 2023. The ALJ reviewed the evidence and found "there are jobs that are reasonably available and suitable" for Amitrano, and as a result, the industrial injury resulted in no loss of earning capacity. Upon Amitrano's request for review, the ALJ reconsidered the record and affirmed the award. This special action followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Act.

Discussion

¶6 As a preliminary matter, we will not address the merits of numerous claims Amitrano raises on review. To the extent we understand them, they can be categorized as: (1) claims of bias, (2) improper rulings by the ALJ that are not supported by evidence, and (3) concerns related to the disclosure of protected information.

¶7 First, we deem several of her claims waived because she does not support them with any meaningful argument or relevant legal authority. See Ariz. R. Civ. App. P. 13(a)(7)(A); see also Polanco, 214 Ariz. 489, n.2. Although Amitrano represents herself, we hold her to the same standard as an attorney. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017). The waived claims are those generally alleging the ICA and ALJ demonstrated bias toward her, challenging the propriety of the independent medical examination, and asserting the ALJ improperly accepted the untimely filing of the loss of earning capacity recommendation report.

¶8 Second, we will not address her claims that are not properly before this court. See Israel v. Indus. Comm'n, 137 Ariz. 124, 127 (App. 1983) (concluding that this court's jurisdiction is limited to deciding matters that ALJ could consider in reviewing decision). These include those relating to her request to hold the Arizona Attorney General's Office accountable for not responding to her "online reporting of coercive civil rights violations" and to investigate the ICA and ALJ. She also raises various complaints concerning what she deems were "continued confidentiality violations of protected privileged and identifying information," and requests that we "[u]pdate [A.A.C.] R20-5-131(G) from 2001 to 2023 regulatory Federal and State standards or strike it altogether, as it is in violation of the Arizona Constitution, Arizona Revised Statutes, Civil Rights." The ALJ determined, and we agree, that she lacked jurisdiction to consider these matters.

¶9 Finally, we will not address Amitrano's arguments concerning the ALJ's "fail[ure] to reconcile" the evidence and the ALJ's determination that her condition is not medically stationary. These are essentially requests that we reweigh the evidence, which we will not do on appeal. Perry v. Indus. Comm'n, 112 Ariz. 397, 398 (1975).

¶10 We now turn to the arguments properly before us on review. Amitrano contends that in concluding she had "suffered no reduction in earning capacity," the ALJ failed to consider that her industrial injury "did and do[es] hamper her abilities to choose from an assortment of other positions that an ordinary individual would be able to ordinarily perform." In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings but review questions of law de novo. Avila v. Indus. Comm'n, 219 Ariz. 56, ¶ 2 (App. 2008).

¶11 Under A.R.S. § 23-1044(C), if an industrial injury causes permanent partial disability for work, the employee is entitled to compensation based on the "employee's reduced monthly earning capacity resulting from the disability." And if the employee's physical condition becomes stationary, the ICA determines a compensation award based on the employee's loss of earning capacity. § 23-1044(F). The goal of establishing loss of earning capacity is to "determine as near as possible whether in a competitive labor market the subject in his injured condition can probably sell his services and for how much." Roberts v. Indus. Comm'n, 162 Ariz. 108, 110 (1989).

¶12 When calculating the award, the ALJ must consider the employee's previous disabilities, prior work history, and "the nature and extent of the physical disability, the type of work the injured employee is able to perform after the injury, any wages received for work performed after the injury and the age of the employee at the time of injury." § 23-1044(D). The employee has the initial burden of proving loss of earning capacity and may satisfy it by presenting evidence that the employee made a "good faith and reasonable effort to find other work" or expert testimony showing the type of work the employee can perform with the industrial injury and the amount the employee would earn from that employment. Franco v. Indus. Comm'n, 130 Ariz. 37, 39 (App. 1981). If the employee meets this burden, it then shifts to the employer and its insurer to establish the availability of suitable employment. Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580 (1983).

¶13 Here, the ALJ found that "Amitrano did not meet her burden to show she made a good faith effort to obtain suitable work," nor did she "present any labor market evidence." The ALJ further found that Amitrano's inability to find suitable work was not due to her industrial injury, but rather due to her decision not to get the COVID-19 vaccination. These findings are supported by the record. In September 2021, Amitrano's pre-injury employer confirmed she was "eligible for reasonable accommodations" to be able to "perform the essential functions of the job." Two months later, she received an email notifying her that she was "eligible for rehire" within the company if she were able to find a position that did "not require the COVID vaccine or should [she] decide to become vaccinated."

¶14 At the hearing on loss of earning capacity, Amitrano testified that in November 2021 she stopped working because (1) she was "having a hard time keeping up" with the physical demands in her position as a mobile field nurse practitioner during the COVID-19 pandemic and (2) she decided not to receive the COVID-19 vaccine, which was required by her employer during that time. Then from January through June 2022, she was receiving unemployment benefits and searching for "nonpatient facing" work but was not "able to get a position without showing that [she] had a [COVID-19] shot." Amitrano further testified that after she stopped receiving unemployment, she ceased meaningfully searching for employment.

¶15 On review, Amitrano contends the ALJ erred by applying the "wrong legal standard" in finding Amitrano had sustained no loss of earning capacity. She maintains the ALJ substantiated her finding on Amitrano's decision not to receive the COVID-19 vaccine, instead of the considerations required by § 23-1044(D), (F) and (G). However, these statutory considerations are only relevant when "determining the amount that represents the reduced monthly earning capacity." § 23-1044(D).

¶16 Moreover, in rendering her decision, the ALJ gave due consideration to the evidence presented by both parties. The ALJ considered conflicting evidence concerning the reason Amitrano's employment was terminated after her industrial injury, and ultimately, the ALJ "f[ound] it most credible that it was due to her unwillingness to be vaccinated against COVID." The ultimate determination of how much weight to give the evidence is a matter entirely within the ALJ's purview. See Madison Granite Co. v. Indus. Comm'n, 138 Ariz. 573, n.3 (App. 1983) (weight to give witness testimony "solely within the discretion of the ALJ"); Perry, 112 Ariz. at 398 (appellate court does not "weigh the evidence"). Because the record supports the ALJ's finding, we uphold the decision that Amitrano suffered no loss of earning capacity. See Perry, 112 Ariz. at 398-99 (we will only disturb ALJ's findings when "conclusion cannot be reasonably supported on any reasonable theory of the evidence").

Disposition

¶17 The ICA's decision upon review affirming the ALJ's award is affirmed.


Summaries of

Amitrano v. Indus. Comm'n of Ariz.

Court of Appeals of Arizona, Second Division
Sep 10, 2024
2 CA-IC 2024-0001 (Ariz. Ct. App. Sep. 10, 2024)
Case details for

Amitrano v. Indus. Comm'n of Ariz.

Case Details

Full title:LORETTA AMITRANO, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF…

Court:Court of Appeals of Arizona, Second Division

Date published: Sep 10, 2024

Citations

2 CA-IC 2024-0001 (Ariz. Ct. App. Sep. 10, 2024)