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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JTSG ENTP INC SOLUTIONS STAFFING DBA SOLUTIONS STAFFING,
Petitioner Employer,
ZURICH AMERICA INSURANCE CO C/O GALLAGHER BASSETT,
Petitioner Insurance Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CARLOS MARTINEZ, Respondent Employee.
No. 1 CA-IC 22-0035
FILED 7-25-2023
Special Action - Industrial Commission
ICA Claim No. ICA20210920283
Carrier Claim No. 001627-167049-WC-01
The Honorable Rachel C. Morgan, Administrative Law Judge
AFFIRMED
COUNSEL
Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By Stephen C. Baker
Counsel for Petitioner Employer and Petitioner Insurance Carrier
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Fernandez Watts Law PLLC, Phoenix
By Shayna Fernandez Watts
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
F O S T E R, Judge:
¶1 Petitioners Solutions Staffing (“Employer”) and Zurich
America Insurance, Co. (“Zurich”) appeal the Industrial
Commission of Arizona’s decision awarding Carlos Martinez
temporary disability benefits. For the following reasons, the
Commission’s decision is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Martinez was employed as an operations technician by
Employer, responsible for maintaining three or four machine
presses. Before starting his employment, Martinez signed
Employer’s Substance Abuse Policy (“Policy”). The Policy
prohibited “[t]he use, possession, solicitation for, or sale of” drugs
and “[b]eing impaired or under the influence of” drugs “that
adversely affects the employee’s work performance [or] his or her
own or others’ safety at the workplace.”
¶3 On March 12, 2021, while Martinez and a coworker were
cleaning a machine press, Martinez stepped off a platform onto
uneven concrete, causing him to fall and twist his ankle. Martinez
testified he neither was “high” nor had “marijuana or marijuana
products” when he arrived at work that day. He further testified
he did not “ingest marijuana” nor attempt to buy or sell marijuana
during his shift. Before his injury, nobody at work spoke with
Martinez about marijuana or his performance or asked him to take
2
JTSG/ZURICH v. MARTINEZ
Decision of the Court
a drug test that day. The Administrative Law Judge (“ALJ”) found
Martinez’ testimony credible.
¶4 Due to the fall, Martinez went to FastMed Urgent Care
(“FastMed”) which diagnosed his injury as a fractured metatarsal
in his foot. Pursuant to Employer’s Policy, FastMed collected a
sample to perform a drug test because Martinez had suffered an
injury. Martinez informed the test examiner that he had an active
medical marijuana card. The card designated Martinez as a patient,
and he used medical marijuana for back pain he claimed arose
from overuse during his military service. FastMed discharged
Martinez with work restrictions of “[l]imited walking, stairs and
no ladders.”
¶5 On his next workday, Martinez returned to work, where
Employer accommodated his work restrictions by assigning him
clerical work. But when Martinez arrived at work on the following
day, his manager informed him his employment was terminated
because his drug test was positive for THC, the substance that
indicates the presence of marijuana. Martinez protested, informing
his manager that he possessed a medical marijuana card, but to no
avail. Employer’s internal communication and termination letter to
Martinez later that week confirmed that the cause was a positive
drug test result.
¶6 On March 22, Martinez began treatment for his work-related
injury with a doctor. That same day, Martinez properly filed a
workers’ compensation claim with the Commission. About a
month later, Zurich accepted Martinez’ claim. On May 19, the
doctor modified Martinez’ work restrictions such that he “must be
seated 80% of the time [and] no lifting greater than 10 pounds.”
¶7 On June 21, Doctor released Martinez from work restrictions.
From the date of his termination until then, Martinez applied for
eight employment positions: a benefit specialist, driving instructor,
salesman, greeter, twice for cable technician, cable installer, and
driver. He did not obtain work during that time. On July 9,
Martinez’ doctor discharged him from care.
¶8 Zurich closed Martinez’ claim on August 9, citing his
discharge from medical treatment, and limited Martinez’ benefits
to medical only. Martinez requested a hearing before the
Commission seeking temporary disability payments and claiming
3
JTSG/ZURICH v. MARTINEZ
Decision of the Court
a permanent impairment requiring active treatment. After a
hearing before the Commission’s ALJ, Employer was found to
have violated the Arizona Medical Marijuana Act’s (“AMMA”)
anti-discrimination provision by terminating Martinez simply
based on his positive drug test results for THC. The ALJ awarded
Martinez temporary disability benefits from March 16 to June 20.
Employer and Zurich petitioned for review. Upon review, the
decision was affirmed.
¶9 This Court has jurisdiction under A.R.S. § 12-120.21(B), A.R.S.
§ 23-951(A), and Arizona Rule of Procedure for Special Action 10.
DISCUSSION
¶10 This court “defer[s] to the ALJ’s factual findings but review[s]
questions of law de novo” and “consider[s] the evidence in the
light most favorable to upholding the award.” Special Fund Div. v.
Indus. Comm’n, 252 Ariz. 267, 269, ¶6 (App. 2021). “Reasonable
inferences from the evidence will be supported, but speculation
based on nothing in the record cannot be indulged.” Nelson v.
Indus. Comm’n, 134 Ariz. 369, 376 (1982).
I. THE ARGUMENTS REGARDING THE AMMA WERE
ABANDONED.
¶11 Petitioners’ briefs argued that Martinez failed to establish he
was a qualifying patient under the AMMA and therefore the
Employer could not violate the AMMA’s anti-discrimination
provision in A.R.S. § 36-2813. They also argued that the ALJ erred
in not applying the safety-sensitive position exception in the
AMMA found at A.R.S. § 23-493.06(A)(7). At oral argument,
Petitioners stated that this Court did not need to address these two
arguments and asked that it solely focus on their third argument:
that Martinez failed to establish he engaged in a good faith job
search. Because Petitioners abandoned their first two arguments,
this Court will not consider them. See Miller v. Hehlen, 209 Ariz. 462,
467, ¶ 13 n.4 (App. 2005); Pruitt v. Pavelin, 141 Ariz. 195, 201 (App.
1984).
II. THE ALJ’S DETERMINATION THAT MARTINEZ ENGAGED IN
A GOOD FAITH JOB SEARCH WILL NOT BE DISTURBED.
¶12 Petitioners’ sole remaining argument is that Martinez bore the
initial burden to show lost earning capacity related to his injury
4
JTSG/ZURICH v. MARTINEZ
Decision of the Court
and failed to do so. Avila v. Indus. Comm’n, 219 Ariz. 56, 59, ¶ 13
(App. 2008). Petitioners argue Martinez solicited too few job
positions and sought employment inconsistent with his work
restrictions.
¶13 An unfruitful good faith effort to seek employment is one
means to satisfy this duty. Avila, 219 Ariz. at 59 ¶ 13. Alternatively,
a claimant can either (1) “present[] testimony from a labor market
expert,” Id. at ¶ 14, or (2) show membership in the “odd-lot
category” where the employee’s ability to work is “so limited in
quality, dependability, or quantity that a reasonably stable market
for them does not exist.” Employers Mut. Liability Ins. Co. v. Indus.
Comm’n, 25 Ariz. App. 117, 120 (1975). Because Martinez provided
no evidence or testimony regarding the alternatives, he must show
he made a good faith effort to gain work and evidence of such is a
factual question to be determined by the ALJ.
¶14 This Court looks to the circumstances of each case to
determine whether claimants have made a satisfactory effort. See
Phelps Dodge Corp. v. Indus. Comm’n, 114 Ariz. 252, 254 (App. 1977)
(finding a satisfactory effort made when claimant “went to his
employer’s Labor Department Head and inquired about the
availability of light work” even though he failed to file formal
applications). Here, Martinez testified that he applied for eight
positions between March 16 and June 21. While Martinez did not
know the specific requirements for two of those positions—cable
technician and cable installer—he believed he could perform the
work while conforming to his work restrictions or at least seek
accommodations.
¶15 Petitioners ask this Court to establish a static rule on what
constitutes a “good faith job search.” Petitioners provide no
support that the Legislature or the Industrial Commission have
implemented such a rule. Since this Court’s job is to interpret the
law as written and applied, it will not take this opportunity to
create law. Martinez provided evidence of his attempts to gain
employment. Based on the evidence and testimony presented, the
ALJ made a credibility determination as to whether those attempts
equated to a “good faith attempt.” This was a factual determination
that was left to the ALJ and not an abuse of discretion. For this
reason, this Court will not disturb the ALJ’s finding that Martinez
is entitled to temporary disability benefits.
5
JTSG/ZURICH v. MARTINEZ
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, this Court affirms.
AMY M. WOOD • Clerk of the Court
FILED: AA
6