Arizona Court of Appeals Division One holds that a workers’ compensation claimant released to full-duty employment may receive temporary partial disability benefits where the claimant can show a loss of earning capacity.

An employee developed injuries at work and filed a claim for workers’ compensation benefits.  His employer denied the claim.  While the employee’s appeal was pending, he received surgery for his injuries.  He attempted to return to work, but his employer allowed him to return only if he did so without restrictions from his injuries.  The employee received a full-duty release in September 2012, but, by that time, his position was no longer available, and he had to obtain several short-term jobs.  In April 2013, his workers’ compensation claims were found compensable, and in June 2013, he was placed on no-work status.

The employee filed a request for temporary partial disability benefits from September 2012 through June 2013.  His employer argued that because the employee received a full release in September 2012, he could not receive temporary partial disability benefits.  An ALJ agreed with the employer and denied the employee’s request. 

The Court of Appeals reversed, holding that under A.R.S. § 23-1044(D), the employee’s termination was related to his industrial injury.  The employer acknowledged that it terminated the employment because the employee’s injuries required surgery and the recovery time associated with those surgeries made termination the most prudent economical decision.  Therefore, the employee was entitled to temporary disability benefits if he could establish a loss of earning capacity under A.R.S. §§ 23-1044(D) and (G)(2).  Noting that the parties did not dispute that the employee earned less in the series of short-term jobs than he did before the injury, the Court of Appeals held that the ALJ had not made the necessary findings under §§ 23-1044(D) and (G) to allow the Court to determine whether the ALJ erred by denying the employee partial disability benefits and remanded to the ALJ to make the necessary findings. 

Chief Judge Brown authored the opinion; Presiding Judge Thumma and Judge Orozco joined