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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BEATRIZ L. CARRILLO,

Petitioner, 

 

v.

 

THE INDUSTRIAL COMMISSION OF 

ARIZONA, 

Respondent, 

 

MESA UNIFIED SCHOOL DISTRICT, 

Respondent Employer, 

 

YORK RISK SERVICES GROUP,

Respondent Carrier.

No. 1 CA-IC 15-0039

Special Action - Industrial Commission

ICA Claim No. 20062-890864

INSCA No. 2006,890864

The Honorable Suzanne Scheiner Marwil, Administrative Law Judge

AFFIRMED

COUNSEL

Beatriz L. Carrillo, Mesa

Petitioner
2

Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent ICA

Jardine, Baker, Hickman & Houston, Phoenix

By K. Casey Kurth

Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.

J O H N S E N, Judge:

¶1 This is a special action review of an Industrial Commission of 

Arizona ("ICA") award and decision of no loss of earning capacity. Beatriz 

L. Carrillo argues that the administrative law judge ("ALJ") lacked sufficient 

evidence to find that her injury resulted in no loss of earning capacity. For 

the following reasons, we affirm the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Carrillo suffered a shoulder injury on September 28, 2006,

while working as a custodian for respondent employer, Mesa Unified 

School District ("Mesa").1 Carrillo received treatment for the injury, was 

awarded a one percent general physical functional disability and was 

released for work with no restrictions. Soon after, Carrillo returned to work

as a custodian, performing substantially the same duties.

¶3 In 2011, Carrillo filed a petition to reopen her claim due to 

resurgent shoulder pain. Mesa contested the petition, and after a hearing, 

the ALJ reopened the claim. Carrillo was granted medical benefits and 

temporary disability benefits. Carrillo saw two orthopedic surgeons; Dr. 

Stuart Kozinn treated her shoulder, and Dr. David Bailie conducted two

independent medical exams. Following Carrillo's release from care on 

November 28, 2012, Mesa petitioned the ICA for a determination of benefits

 

1 When reviewing an ICA award, we construe the evidence in the light 

most favorable to upholding the award. See Lovitch v. Indus. Comm'n, 202 

Ariz. 102, 105, ¶ 16 (App. 2002).
CARRILLO v. MESA UNIFIED/YORK

Decision of the Court

3

to establish her loss of earning capacity. The ALJ heard testimony from 

Carrillo, Kozinn and Bailie, and two labor-market consultants, Richard 

Prestwood and Lawrence Mayer.

¶4 At the conclusion of Kozinn's treatment of Carrillo on 

December 26, 2012, he rated her "with a 20 percent permanent impairment 

of the right upper extremity." He testified Carrillo could "return to light 

duty work as tolerated," adding that she likely would "have symptoms with 

overhead lifting and she should try to find something in a more sedentary 

job or something that did not involve increased use of the upper 

extremities." Bailie disagreed, opining that Carrillo "can return to work 

without restrictions," and that the impairment Kozinn identified "is not 

based on anything specific and is not supported by objective evidence."

¶5 Mayer prepared a Loss of Earning Capacity Analysis Report,

which stated Carrillo was capable of work as a PC assembler because of her 

work experience, competence in English, and because assembly is

sedentary work within her restrictions. Mayer's assumptions regarding 

Carrillo's work history and English competence were based on a deposition

she gave in 2013. In the deposition, Carrillo testified she had worked on an 

assembly line at two aerospace parts companies, the first for ten years, the 

second for eight, and that she could read and understand a newspaper. 

Mayer stated he also considered Bailie and Kozinn's medical findings when 

determining that Carrillo could work as a full-time assembler. Mayer 

identified ten full-time assembler jobs for which he said Carrillo would be 

qualified that were available in the Phoenix area. Mayer stated that

compensation for assembly work is higher than Carrillo received at the time 

of her injury, and as a result she had suffered no loss of earning capacity.

¶6 Prestwood challenged Mayer's conclusions, asserting Mayer 

overstated Carrillo's fluency in English and her experience as an 

assembly/soldering worker. Prestwood interviewed Carrillo in person and 

reviewed her medical records. According to Prestwood's report, Carrillo is

"functionally illiterate in the English language" and possesses no significant 

transferrable job skills. He stated that, contrary to Mayer's report, Carrillo 

had not worked continuously for 18 years as an assembler, but only 

intermittently, working in total only eight years during her time as an 

assembler. Prestwood asserted Carrillo "would only be qualified for very 

entry-level unskilled assembly jobs through temporary employment 

agencies." Prestwood found that given Carrillo's restrictions, the only work 

available to her would be either as a ticket taker in a parking garage or as a 

minimum-wage sandwich maker. After calculating her loss of earning 
CARRILLO v. MESA UNIFIED/YORK

Decision of the Court

4

capacity, Prestwood estimated a monthly entitlement between $439.59 and 

$529.11.

¶7 The ALJ reviewed the evidence and found that Carrillo is

capable of work as an assembler at a higher rate of pay than before her 

injury, and as a result, the industrial injury resulted in no loss of earning 

capacity. Upon Carrillo's request for review, the ALJ reconsidered the 

record and upheld the award. This special action followed.

¶8 We have jurisdiction pursuant to Arizona Revised Statutes

("A.R.S.") sections 12-120.21(A)(2) (2016) and 23-951(A) (2016) and Arizona 

Rule of Procedure for Special Actions 10.2

DISCUSSION

¶9 When reviewing an ICA award, we defer to the ALJ's factual 

findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 

Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in the light most 

favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz.

102, 105, ¶ 16 (App. 2002).

¶10 A claimant is entitled to compensation if an industrial injury 

causes permanent partial disability. A.R.S. § 23-1044(C) (2016). Damages 

for a loss of earning capacity resulting from a permanent partial disability 

are calculated based on the difference between the claimant's earnings

before the injury and "the amount which represents the employee's reduced 

monthly earning capacity resulting from the disability." A.R.S. § 23-

1044(C). It is the claimant's burden to establish a loss of earning capacity. 

Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580 (1983). "The claimant can 

meet this burden by presenting evidence of [her] inability to return to [her]

date-of-injury employment and by making a good faith effort to obtain 

other suitable employment or by presenting testimony from a labor market 

expert to establish [her] residual earning capacity." Avila v. Indus. Comm'n, 

219 Ariz. 56, 59, ¶ 14 (App. 2008).

¶11 In her decision, the ALJ gave due consideration to the 

evidence presented by both parties. The ALJ considered conflicting 

testimony by the physicians, Kozinn and Bailie. Although they disagreed 

about whether Carrillo has any permanent disability, neither testified

Carrillo is entirely unable to work, and ultimately, the ALJ granted 

significant weight to Kozinn's opinion. The two labor-market experts, 

 

2 Absent material revision after the relevant date, we cite a statute's 

current version.
CARRILLO v. MESA UNIFIED/YORK

Decision of the Court

5

Mayer and Prestwood, disagreed about Carrillo's work prospects, given her 

medical history and experience. Mayer's opinion, based on Carrillo's 

testimony and medical records, was that Carrillo could work as an 

assembler. Mayer testified that assembly is sedentary work within

Carrillo's medical restrictions and would be available to her based on her 

18 years of experience. Prestwood testified assembly work is beyond

Carrillo's medical restrictions and that she lacks sufficient experience and 

English literacy for such a position. The ALJ ultimately accepted Mayer's 

opinion, finding Carrillo is sufficiently experienced to find work as an 

assembler, and assembly is work within the medical restrictions Kozinn 

established.

¶12 An appellate court may disturb an ALJ's factual findings only 

when they cannot be supported by any reasonable theory of the evidence. 

Perry v. Indus. Comm'n, 112 Ariz. 397, 398-99 (1975). The evidence before 

the ALJ was sufficient to support a finding that Carrillo is qualified and 

medically able to work as an assembler, and that such employment is

reasonably available in Phoenix. For that reason, there was sufficient 

evidence to uphold the ALJ's decision that Carrillo suffered no 

compensable loss of earnings.

¶13 Carrillo makes several arguments relating to another 

industrial injury she suffered in 2011.

3 The 2011 injury was resolved by 

agreement and is not before us. Accordingly, we will not address her

arguments regarding the closed case.

¶14 Carrillo also makes several arguments concerning the 

conditions of her employment, her prior lawyer's alleged misconduct and

alleged collusion between the parties. These issues are not relevant to relief 

available by special action review of an ICA decision, and we decline to 

consider them.

¶15 Carrillo cites a Social Security disability award in her favor as 

evidence she was disabled at the time of the hearing. Carrillo's Social 

Security disability award was not entered in evidence before the ALJ, and 

it was only mentioned in passing during Carrillo's testimony. It is not 

possible for the ALJ to weigh evidence not before her, and we will not 

consider the Social Security award on appeal.

 

3 ICA Claim # 200112-560058.
CARRILLO v. MESA UNIFIED/YORK

Decision of the Court

6

CONCLUSION

¶16 For the foregoing reasons, we affirm the award.