musd/az v. Special fund/estrada

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MUSD DBA MARICOPA COUNTY REGIONAL SCHOOL DISTRICT NO
509, Petitioner Employer,

THE ARIZONA SCHOOL ALLIANCE FOR WORKERS
COMPENSATION POOL, Petitioner Insurance Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SPECIAL FUND DIVISION, Respondent Party in Interest,

LOURDES ESTRADA, Respondent Employee.

No. 1 CA-IC 22-0002
FILED 8-30-2022

Special Action - Industrial Commission
ICA Claim No. 20180610478
Carrier Claim No. 2017003014A
The Honorable Marceline Lavelle, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

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

Law Office of Eric C. Awerkamp, Mesa
By Eric C. Awerkamp
Counsel for Respondent Employee

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M C M U R D I E, Judge:

¶1 The Industrial Commission of Arizona calculated a loss of
earning capacity for Lourdes Estrada based on a finding that her college
degrees were from an unaccredited university. Because the record evidence
does not support that finding, we set aside the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Estrada is 63 years old and has spent most of her working life
in schools as a teacher, teacher’s aide, classroom assistant, guidance
counselor, program director for the YMCA, and field supervisor for an
after-school program. In 2018, while working as an elementary school
teacher for the Maricopa Unified School District (“MUSD”), Estrada fell and
injured her left shoulder, causing a seven percent permanent impairment.

¶3 The Industrial Commission of Arizona (“ICA”) determined
that Estrada suffered no loss of earning capacity because of the impairment.
Estrada requested a hearing to contest that finding. Estrada and two labor
market experts testified at the hearing. During the expert testimony, an
issue arose about whether the online university from which Estrada
obtained her bachelor’s and master’s degrees between 2010 and 2014 was
accredited. This issue became a lynchpin for the award.

¶4 In preparation for the hearing, the labor market experts
authored reports setting forth the basis for their opinions about whether
and how much Estrada suffered a loss of earning capacity. Rebecca Lollich,

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the expert hired by the insurance carrier,1 filed her report in July 2020 and
updated it in March 2021. In her report, she noted that Estrada obtained an
early childhood education certificate from Irvine College in 1996, a
bachelor’s degree in organizational management in 2010 from Ashford
University (online), an MBA with an emphasis in entrepreneurship from
Ashford (online) in 2012, and a master’s degree in education from Ashford
(online) in 2014. Finally, Lollich noted that Estrada had received a
temporary emergency teaching certificate in 2017, which allowed her to
teach kindergarten for MUSD. The report stated that because Estrada had a
master’s degree in education, she could get a permanent certification if she
filed the proper paperwork.

¶5 Lollich’s report stated that Estrada could not teach in public
schools because she does not have a teaching certificate in Arizona. But
certification is not required for teaching in charter schools, even though
charter schools prefer teachers with certification. Thus, Lollich focused on
the suitability and availability of teaching positions in charter schools. She
concluded that Estrada was qualified to teach kindergarten or early
education in a charter school and that such jobs were available. This led to
a slight loss of earning capacity and a monthly entitlement of $52.34.

¶6 Estrada’s labor market expert, Gretchen Bakkenson, also
noted that Estrada had been working for MUSD under an emergency
teacher certification because she did not have a permanent Arizona
teaching certificate. Bakkenson determined that because Estrada’s work
experience was with kindergarten and first grade, Estrada would not
qualify to teach older children. Bakkenson’s report noted that Estrada had
master’s degrees in business and education. Her report concluded that
Estrada could find a job as a substitute teacher at a charter school or as a
first-grade teacher at a charter school, which caused a loss of earning
capacity and monthly entitlements of $1541.70 or $445.10, respectively.

¶7 Neither expert mentioned Ashford University’s accreditation
status in their reports.

¶8 At the hearing, Estrada testified first. During Estrada’s
testimony, the following exchange about her graduate degrees occurred:

1 We call Petitioners “the carrier” throughout this decision.

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Q. And after you obtained those online degrees from
Ashford University, did you learn as to whether or not their
program was credentialed?

A. They said—they claimed they were credentialed.

Q. Okay. And then did you subsequently learn whether
they were?

A. Now I’m finding out more. Actually, Ashfor[d]
University has lawsuits pending because they—they tell you
you can get the degree and these other jobs you’re able to
obtain with those degrees, and that is false. In my case, that
happened to me, that it didn’t—didn’t follow through with
everything in education.

Q. So despite a master’s degree in education from
Ashford, were you ever able to qualify to teach school in
Arizona?

A. No.

Estrada testified she had obtained emergency certification to teach in
Arizona, which she used to work at MUSD. This emergency certification
was temporary, and Estrada had not received a permanent teaching
certificate in Arizona. She gave no other information about Ashford’s
accreditation status, which was not discussed further during her testimony.

¶9 Bakkenson was the next witness. Early in her testimony, she
stated that Estrada did not have a bachelor’s or master’s degree from an
accredited institution. Bakkenson testified that Estrada had told her this
after she issued her written report. This was the first time the accreditation
information was raised in the record. Because of this new information,
Bakkenson ruled out any teaching job other than substitute teaching for
charter schools and modified her opinion to exclude the $445.10 monthly
entitlement, leaving only the entitlement of $1541.70. During her direct
testimony, she stated several times that Estrada’s degrees were not from an
accredited institution. On cross-examination, she admitted that the sole
basis for her belief that Ashford was not accredited when Estrada received
her degrees was Estrada’s post-report statement.

¶10 Lollich testified that when she interviewed Estrada, Estrada
did not mention that her degrees were from an unaccredited school. Before
she testified, Lollich tried to determine whether Ashford was accredited

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when Estrada obtained her degrees, but she could not. Even so, Lollich
testified that she looked at the requirements for an Arizona emergency
teaching certificate and found that it required a bachelor’s degree or an
advanced degree from an accredited university along with an official
transcript. Thus, she assumed that Ashford was accredited when Estrada
obtained her degrees. During the cross-examination, the following occurred
between Estrada’s counsel, Eric Awerkamp, the carrier’s counsel, Linnette
Flanigan, and the administrative law judge (“ALJ”):

Q. . . . . Would you agree that she does not have
accreditation for her bachelor’s, her one master’s was
completely completed before any accreditation, and most of
her coursework on the other one was completed before any
accreditation?

MS. FLANIGAN: Your Honor, I’m going to object. This
assumes facts not in evidence. There is no evidence that that
school was not accredited other than Ms. Estrada’s
self-serving testimony.

MR. AWERKAMP: There is—there is no evidence in this case
that it was an accredited facility. And you can look up on the
database in two minutes—they’re trying to make the Court
believe that somehow people wouldn’t know this. You can
look it up in two minutes and tell what universities are
accredited and which ones are not.

JUDGE LAVELLE: But the question here is more specific,
and that is where is the evidence that indicates, with respect
to the one master’s degree, if the institution—and I don’t care
whether it’s the one the applicant was attending or any
other—if they were unaccredited, received accreditation
during the course of study for any individual, and when that
individual finishes their program, they’re finishing it with an
accredited institution? . . . How can we find as a fact—or how
could I find as a fact that that was a degree issued—let’s make
it an accredited degree as opposed to dealing with the
institution, without evidence? I mean, I understand both of
your points. That’s not, you know, what I’m discussing. It’s
that if you want me to find as a fact whether her degrees were
issued from an accredited or an unaccredited school, then
there would have to be some information as to when this
school received accreditation and how accreditation being

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concurred [sic] in the midst of a program affects the ultimate
outcome when the certificate/diploma, or whatever you want
to call it, is awarded at the end of that program. I mean, we
can muse about it all day but . . . I’m just saying there’s
nothing in evidence to support either or all of those assertions.
That’s all I’m saying.

MR. AWERKAMP: Let me ask it a different way. . . . Ms.
Lollich, have you seen any documentation, any evidence of
any form in this case indicating that Ms. Estrada has an
accredited degree?

A. Nothing directly, but she was able to obtain her
emergency teaching certificate, which requires that, so my
assumption would be, yes, that she has it.

* * *

Q. Okay. Was she able to provide a bachelor’s from an
accredited facility/institution to get that?

A. My assumption would be yes or she wouldn’t have
been provided with the emergency certificate.

* * *

Q. You didn’t ask her about the accreditation, though,
correct?

A. No, it did not come up. She didn’t give me any
indication that it wasn’t accredited—or didn’t attended [sic]
anything that was not accredited.

Lollich’s testimony concluded without further mention of the accreditation
issue.

¶11 The ALJ issued an award that found substitute teaching “the
most likely and/or probable employment” for Estrada. Thus, she declared
a loss of earning capacity and awarded Estrada a monthly entitlement of
$1541.70. The award summarized the testimony of the witnesses. Although
it made no explicit finding about the accreditation status of Ashford
University when Estrada obtained her degrees, the conclusion is based on
Estrada’s degrees being from an unaccredited institution.

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¶12 The carrier requested administrative review, arguing that
Bakkenson’s opinion was unreliable because it was based on an erroneous
conclusion that Ashford was not an accredited institution when Estrada
obtained her degrees. In support of that argument, the carrier attached two
exhibits to its request for review: (1) a checklist from the Arizona
Department of Education showing the requirements for an emergency
teaching certificate; and (2) a printout of a web page from the Higher
Learning Commission (“HLC”) showing that HLC accredited Ashford
University from 2005 to December 2013. Furthermore, in a footnote in its
memorandum, the carrier stated that since 2013, Ashford has been
accredited by the Western Association of Schools and Colleges Senior
College and University Commission (“WSCUC”) and provided a URL link
to the WSCUC website page relevant to Ashford. That website stated that
Ashford was first accredited in 2013 and provided links to WSCUC
documents chronicling the history of Ashford’s accreditation status.2

¶13 Thus, the carrier provided evidence that a degree from an
accredited institution was needed to obtain an emergency teaching
certificate, and Ashford had been accredited since 2005. The carrier
concluded that “any award based upon the assumption that [Estrada]
lacked a degree from an accredited institution that somehow negatively
impacted her earning capacity must be reviewed and reconsidered.”
Estrada filed a response that provided no contradictory evidence, stating
that the only relevant factor was that she did not have a current Arizona
teaching certificate.

¶14 On review, the ALJ “fully reconsidered” the case, accepting
and considering the exhibits attached to the review request, and issued a
decision. The ALJ began with the following finding:

It is undisputed that [Estrada] reported to the labor
market consultants and testified that the undergraduate and
post-graduate degrees she obtained from Ashford University
were not valid as Ashford was not an accredited institution
when she began each of those degrees.

The ALJ then discussed information she gleaned from the link to the
WSCUC website, including information that the link “leads to.” She found
that whether Ashford was accredited when Estrada attended was

2 See https://www.wscuc.org/institutions/the-university-of-
arizona-global-campus/.

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“completely unclear.” She also found that “the evidence as to when
Ashford was accredited is unreliable,” declaring that Ashford was
accredited in 2020 when the University of Arizona Global Campus acquired
it. The ALJ also concluded that Estrada’s degrees were “not from an
accredited institution.” The ALJ did not mention the document from HLC
and affirmed the award. This statutory special action followed.

DISCUSSION

¶15 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). We defer to the factual findings of the ALJ but review
questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14
(App. 2003). We will not disturb findings unless they are unsupported by
sufficient competent evidence. Pac. Fruit Express v. Indus. Comm’n, 153 Ariz.
210, 214 (1987). But where no evidence supports the findings or conclusions
of an award or where they are clearly erroneous, they will not be permitted
to stand. Blasdell v. Indus. Comm’n, 65 Ariz. 373, 379 (1947).

¶16 The goal of establishing earning capacity “is to determine as
near as possible whether in a competitive labor market the [worker] in his
injured condition can probably sell his services and for how much.” Davis
v. Indus. Comm’n, 82 Ariz. 173, 175 (1957). Residual earning capacity can
only be established by evidence of suitable and reasonably available jobs.
Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 582 (1983). In determining
suitability and availability of employment, the worker’s level of education,
among other factors, must be considered. Cramer v. Indus. Comm’n, 19 Ariz.
App. 379, 381 (1973) (“[A] workman with only a high school education does
not have available to him jobs . . . [that] require a college degree.”). Thus,
one’s level of formal education is a critical factor in determining earning
capacity.

¶17 In Estrada’s case, a critical finding by the ALJ is unsupported
by competent evidence, specifically, that Ashford was not accredited when
Estrada attended and obtained her degrees. The only evidence of the lack
of accreditation came from Estrada. We do not find her testimony on this
subject unequivocal. But viewing it in the light most favorable to upholding

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the award, as we must, we acknowledge that it may tend to show a lack of
accreditation.3

¶18 The only evidence that Ashford was not accredited is
Estrada’s hearsay statement to Bakkenson, apparently made after
Bakkenson issued her written report. Estrada never told Lollich that her
degrees were from an unaccredited institution. Nor is the lack of
accreditation evident on her resume. Thus, the anemic testimony at the
hearing and the hearsay statement made in unusual circumstances are the
only support in the record for a finding that Ashford was not accredited
when Estrada obtained her degrees. And Estrada’s statements are not the
best evidence to determine an accreditation issue.

¶19 On the other hand, the record also contains clear and
unchallenged evidence directly from accrediting institutions that support
Ashford’s accreditation during the time Estrada attended. First, the carrier
rightly pointed out that the issuance of an emergency teaching certificate to
Estrada supported an inference that Ashford was accredited when Estrada
obtained her degrees because accreditation of the degree-granting school is
a requirement for state certification. The carrier also submitted
documentation that revealed accreditation during the relevant period,
roughly 2010 through 2014.

¶20 In the decision, the ALJ failed to mention the documentation
from HLC, which evidenced accreditation from 2005 through 2013. Yet this
documentation was relevant to whether Ashford was accredited in 2010
and earlier when Estrada attended and obtained her bachelor’s degree.
Some experts discussed employment positions requiring only a bachelor’s
degree from an accredited institution. Some positions require a degree in
education or a field related to the subject matter taught, but not all. As a
result, whether Ashford was accredited when Estrada obtained her
bachelor’s degree was a critical issue that needed to be addressed to
determine which potential positions were available to her. Yet the ALJ
ignored the HLC evidence. Instead, the ALJ focused on the website to the
WSCUC accreditation of Ashford that began in 2013.

¶21 The ALJ acknowledged that the website “noted accreditation
as of 2013.” The ALJ then emphasized that the accreditation in 2013 was
issued with a “Notice of Concern.” Yet, we find nothing on the linked website

3 There is no explicit finding about Estrada’s credibility in general or
for the specific statement.

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that supports that finding. The website states that the school’s “Current
Accreditation Status” is “Accredited with Notice of Concern,” but that
means the school “currently meets WSCUC Standards, [but] is in danger of
being found out of compliance.” (Emphasis added.) The website also
showed that WSCUC first accredited the school in 2013. A link on the web
page4 leads to a copy of a letter issued July 10, 2013, in which the accrediting
commission found Ashford in “substantial compliance” and granted
accreditation for five years.5 Yet the ALJ found that the website evidence
was “completely unclear,” expressing doubt about Ashford’s status in 2013
based on the acquisition of the school by the University of Arizona in 2020.
The ALJ also found that “the evidence as to when Ashford was accredited
is unreliable: the [carrier] asserted that certification was granted in 2013 but
the link provided by the [carrier] leads to information indicating Ashford
was acquired in 2020; thus, it would have received certification in 2020.”

¶22 The ALJ ultimately found that “[b]ased upon a review of the
record and the parties’ position statements, Ashford University was not an
accredited institution until 2020 when it was acquired by an accredited
institution, University of Arizona Global Campus.” But the 2020 acquisition
is irrelevant to the inquiry, and the accreditation finding is not supported
by the information on the website, which the ALJ reviewed as part of her
reconsideration. Again, the letter on the website states that Ashford
University was first accredited in 2013.

¶23 Factual errors relied on by the ICA can lead to a decision not
reasonably supported by the evidence. See Gore v. Indus. Comm’n, 15 Ariz.
App. 347, 350 (1971) (award set aside when conclusion by the hearing
officer contained “many errors”). Furthermore, expert testimony can be so
weakened by proof of an inaccurate factual background that the expert
testimony does not constitute substantial evidence. Desert Insulations, Inc. v.
Indus. Comm’n, 134 Ariz. 148, 151 (App. 1982). Our supreme court has said:
“The value of an expert’s opinion is dependent upon and is no stronger than
the premises upon which it is predicated, and such an expert opinion has
no probative force if any one of these premises is shown to be false.” Stanley
v. Indus. Comm’n, 75 Ariz. 31, 33 (1952). Here, the ALJ relied on Bakkenson’s
opinion, which incorrectly assumed that Estrada’s degrees were from an

4 See https://wascsenior.app.box.com/s/9c8lbd7zaahu96nuna1p.

5 Ralph A. Wolff, Western Association of Schools & Colleges,
Accrediting Commission for Senior Colleges & Universities, Commission
Action Letter—Ashford University 6 (2013).

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unaccredited institution. Thus, the award is not supported by substantial
evidence and must be set aside.

¶24 Although not raised by the parties, we would also set aside
the award on another basis. In Zimmerman, our supreme court held that
findings in loss-of-earning-capacity cases should describe job opportunities
that are both suitable and reasonably available. 137 Ariz. at 582. In Landon
v. Industrial Comm’n, 240 Ariz. 21 (App. 2016), this court reversed an ALJ
who made no findings on whether the injured worker met his burden of
showing why he could not return to his date-of-injury employment or
whether he made a good-faith effort to obtain other suitable employment.
Nor were findings made in that case showing that the ALJ considered the
various factors outlined in A.R.S. § 23-1044(D) and (G) that are required to
determine loss of earning capacity. Landon, 240 Ariz. at 28–29. We
concluded that “[w]ithout findings specifically addressing loss of earning
capacity, and the factors related to it, we are unable to determine whether
the ALJ erred.” Id. at 29. Accordingly, we set aside the award for failing to
make the statutory findings. See Aguirre v. Indus. Comm’n, 247 Ariz. 75, 77,
¶ 12 (2019) (A judicial officer must make findings of fact and conclusions of
law, and each finding must contain facts supporting it.).

CONCLUSION

¶25 Because the ALJ relied on an expert opinion based on an
erroneous understanding of a critical fact, we set aside the award.

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

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