NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

PHOENIX UNION HIGH SCHOOL 

DISTRICT NO. 210, Petitioner Employer, 

ARIZONA SCHOOL ALLIANCE FOR 

WORKERS COMPENSATION POOL, Petitioner Carrier, 

v. 

THE INDUSTRIAL COMMISSION OF 

ARIZONA, Respondent, 

MARIA ESTRADA, Respondent Employee. 

No. 1 CA-IC 20-0019 

Special Action - Industrial Commission

No. 20120-670274 

Carrier Claim No. 2011026044A 

The Honorable C. Andrew Campbell, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Wright Welker & Pauole PLC, Phoenix

By Linnette R. Flanigan

Counsel for Petitioner Employer

FILED 12-22-2020
2 

Wright Welker & Pauole PLC, Phoenix

By Shannon Lindner

Counsel for Petitioner Insurance Carrier

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent

Snow Carpio & Weekley PLC, Phoenix

By Dennis R. Kurth

Counsel for Respondent Employee

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Phoenix Union High School District No. 210 (“PUHS”) and 

Insurance Carrier The Arizona School Alliance for Workers Compensation, 

Inc. (collectively, “Defendants”) appeal the Industrial Commission of 

Arizona’s (“ICA”) decision denying their petition for rearrangement of 

disability compensation awarded to a PUHS employee. For the following 

reasons, we set aside the decision. 

FACTS AND PROCEDURAL HISTORY

¶2 In March 2012, Maria Estrada fell and injured her shoulder 

while working as a custodian for PUHS. In February 2013, Estrada’s 

attending orthopedic surgeon, Dr. Evan Lederman, concluded Estrada was 

incapable of returning to her previous job and recommended work 

restrictions (“February 2013 Assessment”). 

¶3 In April 2013, vocational consultant Erin Welsh provided a 

loss of earning capacity recommendation that stated, “[u]tilizing the work 

restrictions outlined by Dr. Lederman . . . Estrada would be capable of 

performing unskilled, entry-level work, part-time such as Fast Foods 

Worker.” She noted “[t]hese positions are hired on a part-time basis, 

approximately 25 hours per week . . . equat[ing] to a date of injury monthly 
PHOENIX UNION/AZ SCHOOL v. ESTRADA

Decision of the Court

3 

earning ability equal to $828.68,” and concluded Estrada was entitled to 

permanent partial disability benefits of $1,019.54 per month.

¶4 About a month later, in May 2013, Dr. Lederman referred 

Estrada to another medical provider for a functional capacity evaluation 

(“FCE”). The FCE concluded Estrada’s functional abilities were a good 

match with an office custodian. Dr. Lederman later testified that the FCE 

found Estrada’s work capacity “a little bit greater” than what he had 

determined in the February 2013 Assessment.

¶5 In June 2013, the ICA awarded Estrada $1,019.54 per month 

for loss of earning capacity, finding her “[m]edical limitations would not 

preclude [her] performing the duties of a fast food worker, 25 hours per 

week, or comparable work earning an average monthly sum of $828.69 

based on the date of injury rates, thereby sustaining the stated loss of 

earning capacity” (“2013 Award”). The ICA cited the February 2013 

Assessment and Welsh’s loss of earning capacity recommendation, but not 

the FCE, as the basis for its award.

¶6 Shortly after the ICA issued the 2013 Award, Welsh provided 

an addendum to her initial loss of earning capacity recommendation

(“Addendum”) in which she stated, “Estrada would be capable of 

performing unskilled, entry-level work, as a Fast Foods Worker” or 

“performing the position of Housekeeper for a hotel/motel establishment.”

She ultimately recommended benefits “ranging from a low of $629.77 per 

month to a high of $746.07 per month.” The 2013 Award did not 

incorporate the Addendum, and none of the parties protested the 2013 

Award.

¶7 Several years later, in June 2017, Defendants’ surveillance 

observed Estrada doing exercises that involved her shoulder. Defendants

had Estrada examined by Dr. Amit Sahasrabudhe, and then filed a petition 

for rearrangement or readjustment of compensation based on a change in 

Estrada’s physical condition in April 2018. See A.R.S. § 23-1044(F)(1). The

ICA granted the petition and rearranged Estrada’s loss of earning capacity 

award to zero. Estrada timely requested a hearing.

¶8 The ICA held an administrative hearing in which Drs. 

Sahasrabudhe and Lederman testified. Experts in loss of earning capacity 

analyses and labor market services also testified. Dr. Sahasrabudhe stated

Estrada did not need any work limitations, but Dr. Lederman disagreed. 

Dr. Lederman said that although Estrada “had a fair bit of improvement 

over the years,” it would still be unsafe for her to return to her former work 
PHOENIX UNION/AZ SCHOOL v. ESTRADA

Decision of the Court

4 

as a custodian, and permanent restrictions on her right shoulder were still 

in order. 

¶9 After the hearing, the ICA issued a decision denying the 

petition for rearrangement, concluding there had been no change in 

Estrada’s earning capacity as a result of any change in her physical 

condition or an increase in her earning capacity after the 2013 Award. See

A.R.S. § 23-1044(F)(1), (3). 

¶10 Defendants sought review of the decision, and the ICA issued 

a decision upon review correcting and clarifying several factual findings

but affirming the rearrangement denial. Defendants petitioned for special 

action relief. This court has jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(2) and 23-951(A), and Arizona Rule of Procedure for Special 

Actions 10. 

DISCUSSION

¶11 Defendants argue the ICA’s denial of their petition for 

rearrangement is contrary to the evidence; unsupported by its own 

findings; based on medical opinion that was contradictory and 

foundationally flawed; and contrary to controlling Arizona law. 

I. Standard of Review 

¶12 When reviewing an ICA award, “[o]ur duty . . . is to 

determine whether the [ICA]’s award is supported by reasonable 

evidence.” Simmons v. Indus. Comm’n, 248 Ariz. 245, 249, ¶ 13 (App. 2020) 

(quoting Borsh v. Indus. Comm’n, 127 Ariz. 303, 306 (1980)). “We view the 

facts and all inferences to be drawn therefrom in the light most favorable to 

upholding the ICA’s findings and award,” France v. Indus. Comm’n, 248 

Ariz. 369, 371, ¶ 3 n.2 (App. 2020), and we will not reweigh the evidence, 

see Wal-Mart v. Indus. Comm’n, 183 Ariz. 145, 146–47 (App. 1995). 

II. Petition for Rearrangement

¶13 A carrier may petition for rearrangement or readjustment of 

disability compensation on the basis that there has been: (1) “a change in 

the [employee’s] physical condition . . . resulting in the . . . increase of the 

employee’s earning capacity”; or (2) “the employee’s earning capacity has 

increased.” A.R.S. § 23-1044(F)(1), (3). 

¶14 To succeed under (F)(1), the carrier “must allege and prove a 

physical change affecting earning capacity.” Pima Cnty. Bd. of Supervisors v. 
PHOENIX UNION/AZ SCHOOL v. ESTRADA

Decision of the Court

5 

Indus. Comm’n, 149 Ariz. 38, 44 (1986). To succeed under (F)(3), the carrier 

must show an increase in earning capacity; if it shows such an increase, “the 

burden shifts to the claimant to show that the presumption is incorrect and 

that in fact there has been no increase in earning capacity.” Id. at 45. Under 

both subsections, “[w]here the first award has become final, the question of 

change is to be measured by comparing the facts determined by the final 

findings and award with those existing at the time of the rearrangement 

petition, even if the earlier findings have been made incorrectly.” Gallegos 

v. Indus. Comm’n, 144 Ariz. 1, 5–6 (1985). 

A. Reasonable evidence supports the ICA’s conclusion that there 

had been no change in Estrada’s physical condition affecting

her earning capacity.

¶15 Defendants first argue the ICA erred by finding no change in 

Estrada’s physical condition affecting her earning capacity. They assert the 

ICA erroneously: (1) compared Estrada’s physical condition as determined 

by the FCE rather than as determined by the February 2013 Assessment; (2)

ignored Gallegos; (3) ignored allegedly uncontroverted evidence that 

Estrada’s condition had improved; and (4) relied on foundationally 

unsound medical testimony. Although we agree that the ICA erred by 

comparing Estrada’s physical condition as determined by the FCE rather 

than the 2013 Assessment, reasonable evidence supports the ICA’s finding 

that no change in Estrada’s physical condition affected her earning capacity. 

¶16 In Finding 18, the ICA found “the work restrictions as set 

forth in the FCE of May 2013, and later adopted by Dr. Lederman, remain 

appropriate.” However, because the 2013 Award was final, “the question 

of change [was] to be measured by comparing the facts determined by the final 

findings and award with those existing at the time of the rearrangement 

petition, even if the earlier findings have been made incorrectly.” Gallegos, 

144 Ariz. at 5–6 (emphasis added). The 2013 Award was based on the 

February 2013 Assessment and initial loss earnings analysis; it did not 

incorporate the FCE or the Addendum. Accordingly, the court erred by 

using the FCE restrictions for comparison.

¶17 Nevertheless, reasonable evidence supports the ICA’s

determination that there had been no change in Estrada’s physical 

condition affecting her earning capacity. Although Dr. Lederman noted 

some improvement in Estrada’s physical condition over the years, he stated

that there was no basis for recommending a change in Estrada’s 2013 
PHOENIX UNION/AZ SCHOOL v. ESTRADA

Decision of the Court

6 

restrictions.1 He also stated that as of his last evaluation of Estrada in 

August 2018, it would still be unsafe for Estrada to return to her former 

work as a custodian, and permanent restrictions on her right shoulder use 

were still in order. Although Dr. Sahasrabudhe testified he did not think 

there was any basis for work restrictions, the court found Dr. Lederman to 

be more credible. We must defer to the ICA’s weighing of the evidence and 

credibility determinations. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 

43, 46 (1988). 

¶18 Defendants assert that the ICA erred by failing to recognize 

foundational flaws in Dr. Lederman’s testimony. However, Defendants 

stipulated to Dr. Lederman’s qualifications, and cannot challenge them 

now on appeal. See Pulliam v. Pulliam, 139 Ariz. 343, 346 (App. 1984) (“A 

party to an action cannot stipulate to one thing and then later change her 

mind and withdraw her consent.”). Defendants argue Dr. Lederman could 

not have offered an opinion on Estrada’s condition because he did not 

conduct another FCE in 2018, but Dr. Lederman based his assessment of 

Estrada’s condition on an assessment he performed in August 2018, within 

two months of the filing of the rearrangement petition. See Ariz. R. Evid. 

702; Gallegos, 144 Ariz. at 5–6. Accordingly, Defendants’ challenge to Dr. 

Lederman’s testimony fails. Reasonable evidence supports the ICA’s 

finding that there had been no change in Estrada’s physical condition 

resulting in an increase in her earning capacity. 

B. The ICA erred by finding no increase in Estrada’s earning 

capacity.

¶19 Defendants next argue the ICA erred by finding no increase 

in Estrada’s earning capacity. They argue the ICA arbitrarily disregarded 

uncontroverted evidence that Estrada could work forty hours a week. We 

agree.

¶20 Although the ICA found that Estrada could work forty hours 

a week, it ultimately concluded that there had been no change in Estrada’s 

earning capacity because “from the effective date of the closure of her claim 

to the present, there ha[d] never been a medical limitation regarding the 

1 It is unclear from the transcript whether Dr. Lederman was referring to 

the restrictions from the 2013 Assessment or the FCE. However, we must 

view the record in the light most favorable to affirming the ICA’s award. 

France, 248 Ariz. at 371, ¶ 3 n.2. 
PHOENIX UNION/AZ SCHOOL v. ESTRADA

Decision of the Court

7 

number of hours that [Estrada] could work in a given week.” This 

conclusion incorrectly characterizes the 2013 Award. 

¶21 As established, the point of comparison under subsections 

(F)(1) and (3) is “the facts determined by the final findings and award . . . 

even if th[ose] findings have been made incorrectly.” Gallegos, 144 Ariz. at 

5–6. The 2013 Award found “[m]edical limitations would not preclude 

[Estrada] performing the duties of a fast food worker, 25 hours per week, 

or comparable work earning an average monthly sum of $828.69,” and it 

based its $1,019.54 award on a twenty-five-hour work week. The 

uncontroverted evidence at trial established Estrada could work forty hours 

per week, and testimony from the vocational expert established that fulltime employment as a fast food worker would result in a loss of earning 

capacity of $746.07, as compared to the $1,853.71 loss of earning capacity 

from the 2013 Award. This constitutes “a showing that [Estrada’s] earning 

capacity has increased after [the 2013 Award],” A.R.S. § 23-1044(F)(3), 

therefore the ICA erred by concluding there had been no such change.

CONCLUSION

¶22 Because the ICA erred by finding no increase in Estrada’s 

earning capacity, we set aside the decision denying Defendants’ 

rearrangement petition.