Fagnani v. Honeywell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY G. FAGNANI, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

HONEYWELL INTERNATIONAL, INC., Respondent Employer,

HONEYWELL INTERNATIONAL, Respondent Carrier.

No. 1 CA-IC 19-0011
FILED 10-31-2019

Special Action - Industrial Commission
ICA Claim No. 20020-040463
Carrier Claim No. 0266000210168
The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Arizona Injury Law Group, PLLC, Phoenix
By Briana E. Chua
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Wright Welker & Pauole PLC, Phoenix
By Linnette R. Flanigan, Shannon Lindner
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Petitioner Anthony G. Fagnani (“Fagnani”) appeals from an
Industrial Commission of Arizona (“ICA”) finding of no loss of earning
capacity after he suffered a work-related injury and sustained a 7%
permanent impairment to his shoulder. He argues that the Administrative
Law Judge (“ALJ”) used the wrong legal standard and that the evidence
produced at the hearing below does not support the ALJ’s findings.
Because there is substantial evidence in the record to support the ALJ’s
conclusion that Fagnani failed to prove a loss of earning capacity, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Fagnani worked for self-insured Respondent Honeywell
International, Inc. for thirty-six years as a machinist and in other roles. In
2001, he suffered a left shoulder injury while on the job, which required two
surgeries to repair the damage. His claim was accepted for benefits and
eventually closed in 2003 with a 7% permanent disability and no work
restrictions. He continued working in his pre-injury job, and, as such,
sustained no loss of earning capacity and received no permanent wage-
related benefits. Fagnani testified that when his shoulder bothered him on
the job, he received assistance from co-workers and Honeywell’s on-site
medical department. He continued working the same job until 2014.

¶3 In 2014, Fagnani suffered a non-industrially-related heart
attack during which he experienced hypoxia. He was resuscitated but
sustained permanent cognitive deficits as a result of the oxygen
deprivation. After the heart attack, he was unable to return to his
employment, and received long-term disability benefits from Honeywell.
When the one-year term of those benefits expired, Fagnani met with
Honeywell’s HR and medical department to explore the possibility of
returning to work in his previous position. As part of that process, he

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informed Honeywell about his cognitive deficits. Honeywell has a policy
of trying to accommodate physical restrictions for returning employees;
however, while Fagnani was touring the facility, he found the work layout
had been renovated in his absence, and he felt the amount of new
information he had to process was “overwhelming.” As a result, Fagnani
unilaterally concluded he could not adequately perform his job, and
advised Honeywell that he would retire rather than complete the job
reentry process. Honeywell then terminated Fagnani’s employment in
2015, for failure to return to work after a long-term disability.

¶4 Fagnani later testified he is incapable of doing his old job
because of his cognitive deficits. He receives Social Security Disability
Insurance benefits and has not looked for work since the heart attack.

¶5 In 2015, Fagnani’s left shoulder began to bother him again,
and he sought a medical evaluation. Because his orthopedic surgeon
recommended further surgery, Fagnani petitioned to reopen his worker’s
compensation claim. The claim was reopened by Honeywell for medical
evaluation, but closed shortly thereafter based on an Independent Medical
Examination performed by Neal L. Rockowitz, M.D., a board-certified
orthopedic surgeon, who concluded that surgery was not indicated and
recommended supportive care. Dr. Rockowitz also found that Fagnani had
work restrictions due to his left shoulder impairment, consisting of no
overhead lifting, no lifting over twenty-five pounds with both upper
extremities, and no repetitive use of the left arm and shoulder. Fagnani
challenged Honeywell’s closure of the claim, and in 2016, the ICA issued an
Award adopting the medical opinions of Dr. Rockowitz and closing the
claim. Fagnani did not renew any discussions with Honeywell as to
whether it could re-employ him with accommodations for the shoulder
restrictions recommended by Dr. Rockowitz.

¶6 In 2017, the ICA issued its administrative Findings and
Award for Unscheduled Permanent Partial Disability awarding Fagnani
disability benefits of $592.66 per month for a 44.90% loss of earning
capacity. Both Fagnani and Honeywell challenged that award, with
Fagnani arguing that he had a greater loss than reflected in the Award and
Honeywell arguing that Fagnani had no loss of earning capacity related to
the 2001 industrial injury. A hearing was held at which the ALJ heard
testimony from Fagnani, two medical expert witnesses, a Honeywell
representative, and two labor market experts.

¶7 The Honeywell representative testified that Honeywell
strives to accommodate employees with work restrictions and was willing

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to do so for Fagnani. She testified that in 2015, Fagnani began going
through the process of determining whether Honeywell could
accommodate his cognitive restrictions and put him back in his former
position or a similar one, but that Fagnani unilaterally abandoned that
process. At that point, Honeywell terminated his employment, considering
his voluntary decision as a failure to return to work after a long-term
disability.

¶8 The two medical experts, Demitri A. Adarmes, M.D., and Dr.
Rockowitz, agreed that Fagnani has work restrictions related to the
shoulder injury. Although they differed about how much weight he could
lift, both experts agreed that Fagnani has restrictions with overhead lifting
and lifting with both arms, as well as with repetitive motion of the left arm
and shoulder. Fagnani presented evidence from a labor market analyst
about jobs that were available in the marketplace, such as a parking lot
attendant or security guard, given Fagnani’s shoulder-related restrictions.
Honeywell presented evidence from a labor market analyst who testified
that, apart from his cognitive issues, Fagnani could return to his former job
or something similar at Honeywell. In the alternative, she testified about
other jobs Fagnani could perform at a lower wage.

¶9 The ALJ issued an award finding that Fagnani “never availed
himself [of] the process” of returning to work for Honeywell with whatever
accommodations might have been available. Based on that finding, she
concluded that Fagnani failed to meet his burden of showing that he could
not return to his former employment due to restrictions from his industrial
injury and, therefore, had “not sustained a loss of earning capacity causally
related to his industrial injury.”

¶10 Fagnani requested review of the ALJ decision. The decision
was affirmed upon review, albeit with the modification of adding several
additional findings related to the medical testimony. This statutory special
action followed. We have jurisdiction under Arizona Revised Statutes
sections 12-120.21(A)(2) and 23-951(A), and by Arizona Rule of Procedure
for Special Actions 10.

STANDARD OF REVIEW

¶11 In reviewing findings and awards of the ICA, 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).

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ANALYSIS

¶12 To show a loss of earning capacity, an injured worker with an
unscheduled injury must show an “inability to perform the job at which he
was injured and to get other work which he can perform in light of his
physical impairments.” Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580
(1983).

¶13 The record shows that Fagnani abandoned his attempt to
return to his job for reasons unrelated to his shoulder injury. Nothing in
the record shows that his shoulder restrictions were the cause of his
decision; thus, those restrictions did not prevent his return to work. Since
Fagnani has the burden to show that his shoulder impairment prevents him
from performing the job he had before the injury, or a similar job, it was
incumbent upon him to show that his job at Honeywell was not available
to him because of his shoulder restrictions.

¶14 Every injured person must seek to minimize loss, including
loss of earning capacity. Hoffman v. Brophy, 61 Ariz. 307, 314 (1944) (“It is,
of course, a rule that every injured person must seek to minimize his loss,
and to put forth an active effort to procure such employment as he is able
to.”). To show a loss of earning capacity then, a claimant must demonstrate
reasonable efforts to obtain employment in the area of his residence. Felker
v. Indus. Comm’n, 134 Ariz. 19, 21 (App. 1982). This requirement includes
returning to the date-of-injury employment if it is available. Landon v.
Indus. Comm’n, 240 Ariz. 21, 27, ¶ 18 (App. 2016). As the ALJ found here,
employment with Honeywell was available, but Fagnani abandoned that
opportunity, unilaterally deciding that he could not return to work. The
ALJ concluded that Fagnani had not shown a loss of earning capacity
because he had failed to show that his work-related restrictions prevented
him from returning to his employment with Honeywell. We find
substantial evidence in the record to support this conclusion.

¶15 Fagnani argues on appeal that the ALJ applied an incorrect
standard to his claim for loss of earning capacity. He bases his argument
on language in the award that may or may not contain a typographical
error. We need not address this argument because it is clear that the ALJ
applied the correct standard in reaching her conclusion. As required by the
law and as correctly cited in the award, the ALJ recognized that the initial
burden was on Fagnani to show that he could not return to his pre-injury
job due to the shoulder restrictions. See Dean v. Indus. Comm’n, 113 Ariz.
285, 287 (1976) (explaining the burden shifts to the employer only if the
worker shows reasonable efforts to obtain employment). After the ALJ

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found that Fagnani failed to meet his initial burden, there was no need for
further analysis.

¶16 Fagnani also argues on appeal that the evidence does not
support the ALJ’s conclusion that he failed to meet his burden. We have
already determined that it does, but we note here that Fagnani seems to
misunderstand the ALJ’s decision. The ALJ concluded that because his pre-
injury job with reasonable accommodations was likely available and
Fagnani abandoned that opportunity, albeit for reasons unrelated to his
shoulder impairment, and because he failed to look for any other work for
the same reason, he has not shown a loss of earning capacity related to the
shoulder impairment. If Fagnani cannot be employed, he has not shown
that it is because of his shoulder restrictions.

CONCLUSION

¶17 Because Fagnani has not shown a loss of earning capacity due
to his industrial injury, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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