RICHARDSON v. MESA

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE WILLIAM RICHARDSON, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CITY OF MESA, Respondent Employer, CITY OF MESA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/18/2012 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-IC 12-0016 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 0000P117776 Carrier Claim No. 000004382 Administrative Law Judge J. Matthew Powell AWARD AFFIRMED Joel F. Friedman, PLLC By Joel F. Friedman Attorneys for Petitioner Employee Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Klein, Doherty, Lundmark, Barberich & La Mont, P.C. By Eric W. Slavin Attorneys for Respondent Employer and Carrier Tucson K E S S L E R, Judge ¶1 This is a special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review for permanent disability benefits. appeal, specifically Three issues are presented on whether the administrative law judge ( ALJ ) (1) erroneously failed to consider the petitioner employee s ( claimant s ) testimony regarding his industrially related symptoms and functional limitations; (2) accurately summarized the claimant s ability to perform basic physical work activities despite his residual symptoms and functional limitations; and (3) erred by concluding that the job of customer service representative was both suitable for and reasonably available to the claimant. The record and the award demonstrate that the ALJ considered all of the testimony claimant, and that presented the to evidence him, including supports regarding the claimant s ability to work. the that ALJ s of the findings Further, the accepted medical and labor market evidence supports the ALJ s finding that the claimant representative. can perform the job of customer For these reasons, we affirm the award. 2 service JURISDICTION AND STANDARD OF REVIEW ¶2 This Court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (2012), and Arizona Rule of Procedure for Special Actions 10. Our review is limited. In reviewing findings and awards of the ICA, we defer to the ALJ s factual findings, but review questions of law de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). PROCEDURAL AND FACTUAL HISTORY ¶3 The self-insured respondent employer, City of Mesa ( Mesa ), employed the claimant as a police officer on October 10, 1986, when he was involved in a motor vehicle accident while on duty. The claimant sustained injuries to his low back and both knees, all of which required surgery. He filed a workers compensation claim, which was accepted for benefits. Over the years, the claimant s claim was opened and closed a number of times for additional treatment issues. 3 of ongoing lumbar and knee ¶4 In April 2010, Mesa obtained independent examinations of the claimant s knees and low back. medical Based on these reports, it issued a notice of claim status reclosing the claim on July 20, 2010, with an unscheduled permanent partial impairment. The ICA then issued its findings and award for a nine percent permanent impairment, resulting in a 31.46 percent loss of earning capacity, and benefits in the amount of $229.24 per month. The claimant timely protested the ICA s award and requested a hearing. ¶5 The ALJ held four hearings and heard testimony from the claimant, two physicians, and two labor market experts. He adopted the testimony of Mesa s independent medical examiner and labor market disability claimant expert benefits timely and in awarded accordance requested the with their administrative summarily affirmed his award. claimant permanent opinions. review, but the The ALJ The claimant next brought this appeal. DISCUSSION ¶6 legally The claimant insufficient first because argues he that failed the to ALJ s make an award is express credibility finding or to explain why he did not consider [the claimant s] testimony. The Arizona Supreme Court reassessed the specificity necessary for a legally sufficient award in Post 4 v. Indus. Comm n, 160 Ariz. 4, 770 P.2d 308 (1988). concluded ultimate that the award disposition and should the specify evidence Post, 160 Ariz. at 7, 770 P.2d at 311. the The court basis supporting for that the basis. The court went on to state that this does not mean that a lack of findings on a particular issue . . . invalidate[s] an award per se. Id. But if the appellate court must speculate about the basis for the award or assume a factfinder role, then the award must be set aside because it is so lacking in specificity that we cannot review it. ¶7 Id. at 7, 9, 770 P.2d at 311, 313. An ALJ is not required to make a specific finding on every issue, as long as he resolves the ultimate issues in the case. See CAVCO Indus. v. Indus. Comm n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 (1981). in an award. Further, some findings are implicit See Pearce Dev. v. Indus. Comm n, 147 Ariz. 582, 583, 712 P.2d 429, 430 (1985). ¶8 In this case, the ultimate issue was the claimant s earning capacity impairments. in light of his residual industrial Initially, we recognize that in the award, the ALJ stated he had considered the evidence, file and all related matters and that he summarized the claimant s testimony. On review, this court presumes that the ALJ considered all relevant evidence. See Perry v. Indus. Comm n, 112 Ariz. 397, 398, 542 5 P.2d 1096, 1097 (1975). ¶9 The claimant argues that if the ALJ rejected his testimony as to his physical limitations, he needed to make an express credibility finding. We agree that a specific credibility finding is necessary when credibility is a material issue. Villaneuva v. Indus. Comm n, 148 Ariz. 285, 287-88, 714 P.2d 455, 457-58 (App. 1985). specific finding, credibility. this Further, in the absence of a Court will not imply a rejection of See Joplin v. Indus. Comm n, 175 Ariz. 524, 528, 858 P.2d 669, 673 (App. 1993). ¶10 In this case, credibility finding Establishing a as claimant s we do to not the that claimant residual medical and labor market evidence. find earning was a specific necessary. capacity requires Avila v. Indus. Comm n, 219 Ariz. 56, 60, ¶ 15, 193 P.3d 310, 314 (App. 2008) ( The labor market expert s role [in determining residual earning capacity] is to receive medical input from the treating physician regarding the claimant s physical capabilities and to match them to the requirements market. ). of specific jobs in the open labor Here, the ALJ heard testimony from two doctors and two labor market experts, all of whom had heard and/or read the claimant s testimony and used it to form the foundation for their opinions. 6 ¶11 In object is establishing to determine residual as near earning as capacity, possible [t]he whether in a competitive labor market the subject in his injured condition can probably sell his services and for how much. Davis v. Indus. Comm n, 82 Ariz. 173, 175, 309 P.2d 793, 795 (1957). Ordinarily, the injured worker has the burden of proof and must meet it with evidence of inability to perform the job at which he was injured or to earn suitable and available work. a comparable wage through other Zimmerman v. Indus. Comm n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983). ¶12 The claimant can meet this burden by presenting evidence of his inability to return to date-of-injury employment and by making a good faith effort to obtain other suitable employment or by presenting testimony from a labor market expert to establish residual earning capacity. See D Amico v. Indus. Comm n, 149 Ariz. 264, 266, 717 P.2d 943, 945 (App. 1986). there is testimony that these efforts were made and If were unsuccessful, the burden of going forward with contrary evidence shifts to the employer and carrier. Zimmerman, 137 Ariz. at 580, 672 P.2d at 924. ¶13 Here the evidence established that Mesa medically retired the claimant as a result of the residual impairment from his industrial injury. For that reason, he could not return to 7 his date-of-injury employment. Instead, the clamant presented testimony from a labor market expert, Nathan Dean. Mr. Dean relied on the physical limitations provided by the claimant s treating physician, Dennis Armstrong, M.D., for his opinion that the claimant was unable to return to any work. ¶14 The ALJ rejected Mr. Dean s testimony and adopted the opinions of Duane D. Pitt, M.D., examiner, and labor market expert, Mesa s independent Rebecca Lollich. medical As the trier of fact, it is the ALJ s duty to resolve all conflicts in the evidence and to draw all warranted inferences. Malinski v. Indus. Comm n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968). For that reason, it is necessary to determine whether Dr. Pitt s and Ms. Lollich s testimony is legally sufficient to support the award. ¶15 The claimant argues that Dr. Pitt s testimony foundationally insufficient and cannot support the award. is This Court has recognized that medical testimony can be so weakened by proof of an inaccurate factual background, that [it] cannot be said to constitute substantial evidence to support an award. Desert Insulations, Inc., v. Indus. Comm n, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App. 1982) (citation and internal quotation marks omitted). Many factors enter into a resolution conflicting evidence, including whether 8 of or not the testimony is speculative, consideration of the diagnostic method used, qualifications in backgrounds of the expert witnesses and their experience in diagnosing the type of injury incurred. Carousel Snack Bar v. Indus. Comm n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). ¶16 fact. Medical opinions must be based on findings of medical Royal Globe Ins. Co. v. Indus. Comm n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973). claimant s history, examinations. medical See id. These findings may come from the records, diagnostic tests, and Further, this Court has recognized that an ALJ is not required to give greater weight to the testimony of the treating physician. Walter v. Indus. Comm n, 134 Ariz. 597, 599, 658 P.2d 250, 252 (App. 1982). ¶17 Dr. Pitt is a board certified orthopedic surgeon and a fellowship trained spine surgeon. April 16, 2010, reviewed his studies, and authored a report. He examined the claimant on medical records and imaging Due to his concern that the claimant might have a pseudoarthrosis at the site of his L5-S1 spinal fusion, Dr. Pitt requested additional diagnostic studies, which he reported on May 24, 2010, in an addendum report. ¶18 Dr. Pitt s reports demonstrate that he was aware of the claimant s injury, surgeries, rehabilitation, ongoing pain, and the necessary adjustments to his daily activities to control 9 that pain. daily He also recorded that these adjustments included a exercise lifting, as program well as combining limitations swimming on and standing, sitting and frequent changes in position. light weight walking, This information is found both in the doctor s testimony and his reports. that Dr. Pitt had a legally sufficient and foundation We find for his medical opinion and nothing more was required. ¶19 The claimant last argues that the ALJ erred by finding the customer service representative position was suitable for and reasonably available to him. We note that the majority of the claimant s argument is addressed to the suitability of this type of work. there must be In order to establish residual earning capacity, evidence of job opportunities which are (1) suitable, i.e., which the claimant would reasonably be expected to perform considering his physical capabilities, education, and training; and (2) reasonably available. Germany v. Indus. Comm n, 20 Ariz. App. 576, 580, 514 P.2d 747, 751 (1973). In determining a claimant s residual earning capacity, the ALJ must consider any previous disability, the occupational history of the injured employee, the nature and extent of the physical disability, the type of work the injured employee is able to perform subsequent to the injury, any wages received for work 10 performed subsequent to the injury and the age of the employee at the time of injury. ¶20 In this See A.R.S. § 23-1044(D) (Supp. 2012). case, testimony of Ms. Lollich. the ALJ adopted the labor market She testified that in preparation for her labor market report, she reviewed and considered voluminous file materials and documents. This included medical records and reports and education and employment records. Because Ms. Lollich considered the claimant as a whole in assessing his earning capacity, she also was present throughout his deposition so that she could ascertain how he related in a professional setting, how he presented himself, his appearance, and his physical attributes. ¶21 Ms. Lollich relied on the physical limitations provided by Dr. Pitt for the claimant s back and Dr. Bailie for his knees. These limitations focused her labor market research on sedentary to light seated positions. She testified that she also had personal experience working as a human resources manager for a 500 person call center. recommendation personal of knowledge Ms. Lollich based her customer service and claimant s the representative attributes: on her personal presentation, police work background for communication skills, long tenure employment, articulate, and a proficient writer. 11 ¶22 With regard to the physical setting for this position, Ms. Lollich testified that the work stations for these jobs were pretty similar: a cubicle with a divider, . . . so the voices don t . . . carry[,] . . . a computer[,] . . . a keyboard, mouse, phone, with an earpiece[,] although wireless, and an adjustable chair. 1 some are going In her experience and opinion, the claimant would be able to get up and down, and move around the cubicle. ¶23 This court has recognized that [T]he employment expert may bring to the trier of fact his expertise in this area (which makes his opinion admissible) this type of evidence is not so completely outside the understanding of the average layman, that a contrary conclusion cannot be reached. As with most expert opinions, the trier of fact is entitled to consider it, but give it only the weight to which he deems it is entitled. LeDuc v. Indus. Comm n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227 (App. 1977). market In this case, the ALJ found Ms. Lollich s labor testimony persuasive. Based on our review of her testimony, we find it to be legally sufficient to establish the 1 Ms. Lollich also testified that these positions would each begin with a training period. 12 suitability and reasonable availability of customer service work. ¶24 For all of the foregoing reasons, we affirm the ALJ s award. /S/ DONN KESSLER, Judge CONCURRING: /S/ MICHAEL J. BROWN, Presiding Judge /S/ ANDREW W. GOULD, Judge 13

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