Al Jajo v. arrowhead/benchmark

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ABDULAHAD AL JAJO, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AARROWHEAD SECURITY INC VETSEC PROTECTION AGENCY,
Respondent Employer,

BENCHMARK INSURANCE, Respondent Carrier.

No. 1 CA-IC 25-0019
FILED 05-05-2026

Special Action - Industrial Commission
ICA Claim No. 20211480478
Carrier Claim No. 7176043
The Honorable Karen E. Karl, Administrative Law Judge

AFFIRMED

COUNSEL

Abdulahad Al Jajo, Peoria
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Lundmark Barberich La Mont & Puig PC, Phoenix
By Kevin E. Karges, Austin M. Vale
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Veronika Fabian joined.

H O W E, Judge:

¶1 Abdulahad Al Jajo appeals an Industrial Commission of
Arizona (“ICA”) decision denying him disability benefits. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2021 Al Jajo fractured his hip working as a security guard
for Arrowhead Security Inc., doing business as Vet-Sec Protection Agency
(“VetSec”). After an evidentiary hearing, the Administrative Law Judge
(“ALJ”) found that Al Jajo’s “condition became medically stationary with
an unscheduled 22% permanent impairment of the left lower extremity”
and closed his claim. The ICA Claims Division then established that Al Jajo
“sustained a reduction in monthly earning capacity, entitling [him] to the
sum of $33.79 per month.” He requested a hearing to challenge that
determination.

¶3 At the start of the hearing, the ALJ clarified that the only issue
for consideration was Al Jajo’s earning capacity: his “ability to earn a living
on the open and competitive labor market.” The ALJ also reminded Al Jajo
during the hearing that his medical condition, specifically his request for a
hip replacement, was not at issue.

¶4 Dr. David Ott, an orthopedic surgeon who conducted two
independent medical examinations (“IMEs”) of Al Jajo testified. He
testified, consistent with his written reports, that Al Jajo “could work in a
sedentary or light duty status, which would include work as a security
guard” so long as his work was restricted. Specifically, he felt that Al Jajo’s
work should be limited to no heavy lifting or running, walking no farther
than 100 yards at a time, and walking no more than 1000 yards per shift.

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Sam Fullam, VetSec’s Director of Technology Solutions, testified that
VetSec would allow Al Jajo to return to work and accommodate the
restrictions recommended by Ott. Fullam said that VetSec “would love to
have him back” and that the pay for the position had increased. VetSec
made a written offer of employment to Al Jajo assuring that they would
accommodate his medical restrictions.

¶5 Al Jajo represented himself during the hearing. He called
Brett Heath, a labor market consultant, as a witness. Heath originally issued
a report finding that Al Jajo was wholly disabled and thus had a total loss
of earning capacity. But at the hearing Heath agreed that if VetSec offered
Al Jajo his former security job at the same or higher pay rate with the
restrictions recommended by Ott, he would not have any reduction in
earning capacity. Another labor market consultant, D. Nolan McKelvey,
also testified that Al Jajo had no loss of earning capacity because he could
return to work as a security guard with VetSec, who would accommodate
his medical restrictions. During the hearing, Al Jajo stated that he “cannot
work more than three hours a week.” He testified that he returned to work
for VetSec one day in a security job that required him to sit but could not
continue longer than three hours because of pain. He also testified that he
had not looked for work since the injury.

¶6 The ALJ found that Al Jajo had no loss of earning capacity
because he could return to his job with the same hours and pay with
accommodation for the recommended physical restrictions. Al Jajo
requested review. The ALJ reconsidered the evidence and affirmed the
decision. Al Jajo then filed this statutory special action for judicial review of
the ICA decision. We have jurisdiction under A.R.S. §§ 12-120.21(B), 23-
951(A).

DISCUSSION

I. Waiver

¶7 After Al Jajo filed his opening brief, Respondents moved to
strike it for not complying with Arizona Rule of Civil Appellate Procedure
(“Rule”) 13(a)(7) because “it [did] not contain any legal argument or
citations to the record.” This Court denied the motion.

¶8 In the answering brief, Respondents again argue that Al Jajo
has waived appellate review by not complying with Rule 13(a)(7)(A). They
claim Al Jajo’s brief “does not contain any legal argument.” Although his
argument has its shortcomings, Al Jajo argues his evidence was sufficient
and the decision is deficient because it did not address his “core claims.”

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AL JAJO v. AARROWHEAD/BENCHMARK
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True, Al Jajo’s opening brief lacks citations to the record, but the record is
not extensive and we had no difficulty identifying the evidence on which
the ALJ relied. Thus, we exercise our discretion to decide Al Jajo’s appeal
on the merits. Clemens v. Clark, 101 Ariz. 413, 414 (1966) (courts are inclined
to decide cases on their merits); Lederman v. Phelps Dodge Corp., 19 Ariz.
App. 107, 108–10 (1973) (where an opening brief was “grossly deficient,”
the court was “loathe to penalize appellant by complete rejection” but, after
considering the merits, affirmed the lower court judgment).

¶9 We do not address Al Jajo’s other arguments, such as the need
for a hip replacement and complaints about the attorney who represented
him in the pre-hearing phase of the case, because they are not relevant to
the issue before us; whether the evidence supports the ICA decision. See
A.R.S. § 23-951(B) (review of an ICA decision is limited to whether the ICA
acted within its authority and whether the factual findings support the
decision).

II. Evidence Supports the ICA Decision

¶10 In reviewing the ICA’s decision, we defer to the ALJ’s factual
findings but review legal questions de novo. Young v. Indus. Comm’n, 204
Ariz. 267, 270 ¶ 14 (App. 2003). The ALJ must resolve conflicting evidence
and “determine which of the conflicting testimony is more probably
correct.” Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975). When the ALJ
resolves such a conflict, we will not disturb that conclusion unless wholly
unreasonable. Royal Globe Ins. Co. v. Indus. Comm’n, 20 Ariz. App. 432, 434
(1973).

¶11 A request for a hearing to protest the Claims Division
determination of loss of earning capacity effectively vacates the Claims
Division’s findings and award. Parra v. Indus. Comm’n, 213 Ariz. 265, 268
¶ 12 (App. 2006). The ICA ALJ must conduct an independent analysis of the
evidence to determine loss of earning capacity. Id.

¶12 Al Jajo’s claim is for the loss of all earning capacity due to his
work injury. He had the burden to prove loss of earning capacity and, if
found, the extent of the loss. Young, 204 Ariz. at 270 ¶ 18; see also Schuck &
Sons Const. v. Indus. Comm’n, 213 Ariz. 74, 78 (App. 2006). To show loss of
earning capacity, an injured worker bears the burden to 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). Generally, this burden is met by showing
that the injury prevents a return to the prior employment and that there has

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AL JAJO v. AARROWHEAD/BENCHMARK
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been a reasonable effort to find work. Id.; Weidmaier v. Indus. Comm’n, 121
Ariz. 127, 130 (1978).

¶13 Al Jajo failed to convince the ALJ that he cannot return to his
prior employment. Evidence supports the ALJ’s conclusion that Al Jajo
could return to his former position and VetSec would implement the
accommodation recommended by Dr. Ott, resulting in no lost earning
capacity. Al Jajo did not present medical evidence or expert testimony
contradicting Dr. Ott’s opinion that he could work with restrictions.
Although he testified about a single instance in which he tried but failed to
work longer than three hours, the ALJ could reasonably conclude that this
testimony did not show Al Jajo could not work at his former position with
appropriate restrictions. Given the evidence presented, the ALJ could also
reasonably reject Al Jajo’s repeated statements that he could not work more
than three hours per week. And no evidence shows that Al Jajo tried to find
work within this “three hours per week” limitation.

¶14 Al Jajo failed to show he could not return to the job at which
he was injured. The ALJ addressed his claim sufficiently in the decision.
The conclusion that Al Jajo could work at his former job with the
recommended accommodation is supported by evidence in the record and
is reasonable. See Royal Globe Ins. Co., 20 Ariz. App. at 434.

CONCLUSION

¶15 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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