Cohn v. Industrial Com'n of Arizona

874 P.2d 315, 178 Ariz. 395, 164 Ariz. Adv. Rep. 6, 1994 Ariz. LEXIS 45
CourtArizona Supreme Court
DecidedMay 3, 1994
DocketCV-93-0072-PR
StatusPublished
Cited by9 cases

This text of 874 P.2d 315 (Cohn v. Industrial Com'n of Arizona) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohn v. Industrial Com'n of Arizona, 874 P.2d 315, 178 Ariz. 395, 164 Ariz. Adv. Rep. 6, 1994 Ariz. LEXIS 45 (Ark. 1994).

Opinion

OPINION

ZLAKET, Justice.

Claimant Henry Cohn was employed by Smitty’s Super Valu for almost twenty years. His primary job was stocking shelves with grocery items, which frequently required heavy lifting.

On March 4,1990, while handling a case of milk, claimant fell and hurt his lower back. He had previously injured the same area in-a 1986 car accident. On March 13, the industrial injury was diagnosed as a lumbosacral strain. Cohn underwent medical treatment and was placed on no-work status for four months. Respondent carrier accepted the claim.

In August 1990, claimant was released to sedentary activity. The carrier thereupon terminated his benefits and closed the case. A week later, Cohn returned to work at Smitty’s, but was reassigned to the “light duty” position of cashier because of lifting restrictions. Smitty’s paid him $11.21 per hour, the same rate he had earned as a clerk.

In September, a customer complained to the store manager that Cohn had been belligerent with her. As a result, he was called into the manager’s office and fired for “insubordination.” Claimant later testified that he had not been rude or belligerent. He also asserted that he was denied a chance to explain his side of the story to the manager.

Following his termination, Cohn actively sought jobs at other Phoenix grocery stores. During this time, his back pain worsened. According to claimant’s testimony, Dr. Joseph Longo placed him on no-work status in January 1991, and he resumed treatment. In February, at the carrier’s request, he saw an orthopedic surgeon who concluded that his back pain was the result of an exacerbation of his previous automobile-related injury. That physician concurred with Dr. Longo’s prescription for active medical treatment, but recommended that claimant be released to light work. The carrier reopened Cohn’s industrial claim for medical benefits. In March, a magnetic resonance image (MRI) revealed a herniated disc in his lower back. That same month, claimant requested a hearing pursuant to A.R.S. § 23-1061(J), 1 alleging that the carrier was withholding compensation benefits due him for time off work since the date of his termination.

Cohn did not obtain other employment until June 22,1991, when Albertson’s hired him as a part-time grocery stocker. There he earned $9.55 per hour. He performed his *397 duties by wearing a back brace, taking pain medication, and moving carefully.

Claimant’s request was granted, and a hearing was conducted in September. His counsel submitted medical reports and the MRI results, which respondents did not challenge. The parties also agreed that he had been on modified work status since January 1991.

Cohn was the only witness who testified at the hearing. When his counsel began to question him about the circumstances surrounding his return to work and subsequent termination, the lawyer for Smitty’s objected. The Administrative Law Judge (ALJ) rejected the testimony despite counsel’s argument that Smitty’s may have fired Cohn to avoid making compensation payments. The judge ruled that the evidence was irrelevant because he did not have jurisdiction to determine whether claimant had been wrongfully terminated.

The ALJ ultimately found that although Cohn was “properly considered to be in a temporary partial disability status,” he was not entitled to compensation for his time off work after September 19, 1990. The crux of the judge’s decision is in his twelfth finding:

12. In considering applicant’s assertion’s [sic] that he is entitled to compensation after September 19, 1990, it is necessary that the undersigned judge focus on the circumstances concerning applicant’s termination of employment and the ultimate issue requiring resolution herein is to determine whether, despite applicant’s misconduct, his industrial disability caused his loss. In the present case, the undersigned hearing judge having applied the rules set forth in the cases cited herein-above including a consideration of the cited statutory provisions is satisfied that applicant’s employment was properly terminated and that he by his own actions removed himself from gainful employment and placed himself in a position where he then had to compete in the competitive labor market for other employment and that any loss in earnings was not by reason of his industrial injury.

Claimant requested review of the decision, arguing that because the ALJ had indicated at the hearing that he lacked jurisdiction to decide whether the termination was proper, and had rejected evidence on the issue, he should not have made any such finding. Claimant also asserted that he should not have been precluded from testifying about what he regarded as the highly suspicious circumstances surrounding his termination. In any event, he argued, misconduct alone would not disqualify him from compensation.

The ALJ thereafter modified the twelfth finding to read as follows:

12. In considering applicant’s assertion’s [sic] that he is entitled to compensation after September 19, 1990, it is necessary that the undersigned judge focus on the circumstances concerning applicant’s termination of employment and the ultimate issue requiring resolution herein is to determine whether, despite applicant’s alleged misconduct, his industrial disability caused his loss. In the present case, the undersigned hearing judge has no jurisdiction to determine whether applicant’s employment was properly terminated; however, considering the cited cases, a determination must be made as to whether any loss of earnings was by reason of applicant’s industrial injury alone. Applicant’s agruments [sic] concerning the propriety or impropriety of his termination must be considered by a Court or other State Agency empowered by law so to do. Considering the evidence in its entirety, applicant’s loss in earnings was not by reason of the industrial injury of March 4, 1990.

The remainder of the original order was unchanged.

Claimant filed a petition for special action in the court of appeals, which issued an opinion affirming the ALJ’s award. Cohn v. Industrial Comm’n, 176 Ariz. 508, 862 P.2d 881 (Ct.App.1993).

EFFECT OF MISCONDUCT

We recently rejected the rationale advanced by the ALJ in his first order, that claimant had “by his own actions removed himself from gainful employment” and, therefore, “that any loss in earnings was not by reason of his industrial injury.” Arizona Dept. of Public Safety v. Industrial Comm’n, *398 176 Ariz. 318, 861 P.2d 603 (1993). Even though this language does not appear in the final version of finding number twelve, it is clear that the ALJ continued to focus narrowly on claimant’s alleged misconduct and termination. His erroneous conclusion that any loss of earnings had to be “by reason of applicant’s industrial injury alone ” (emphasis added) illustrates the point. In

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Bluebook (online)
874 P.2d 315, 178 Ariz. 395, 164 Ariz. Adv. Rep. 6, 1994 Ariz. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-v-industrial-comn-of-arizona-ariz-1994.