Opinion
No. 2 CA-IC 2014-0014
12-30-2014
BJ CECIL TRUCKING, INC., Petitioner Employer, WAUSAU BUSINESS INSURANCE COMPANY, Petitioner Insurer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, RAYMOND D. CRUM JR., Respondent Employee.
COUNSEL Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson By Eric W. Slavin Counsel for Petitioners Employer and Insurer The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Tretschok, McNamara & Miller, P.C., Tucson By J. Patrick Butler Counsel for Respondent Employee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Special Action - Industrial Commission
ICA Claim No. 20100140006
Insurer No. WC197732547
Gary M. Israel, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Tretschok, McNamara & Miller, P.C., Tucson
By J. Patrick Butler
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this statutory special action, petitioner Wausau Business Insurance Company challenges the administrative law judge's (ALJ) award granting respondent employee Raymond Crum's petition for rearrangement or readjustment of compensation. Wausau argues the ALJ erred in finding Crum's reduction in earning capacity was due in part to his work-related shoulder injury, and not wholly attributable to a subsequent seizure and the anti-seizure medication he had been prescribed. For the reasons that follow, we affirm.
In the captions of its petition for review, opening brief, and reply brief, the insurer refers to itself as "Liberty Mutual." However, the record shows Wausau as the insurer below and that counsel on appeal represented Wausau below as well. Because the record does not indicate any change, we refer to Wausau as the petitioner here.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the ALJ's award. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2, 275 P.3d 638, 640 (App. 2012). In December 2009, Crum slipped and injured his right shoulder while working as a commercial truck driver for BJ Cecil Trucking, Inc. In March 2010, Crum underwent right rotator cuff surgery performed by Dr. Rex Bryce. Crum filed a workers' compensation claim for the injury, which Wausau accepted and then closed in September 2010.
¶3 Crum returned to work but his right arm "wasn't strong enough to do anything" and "it was taking [him] longer to do each load." He continued working until February 2011, when he suffered a seizure provoked by sleep deprivation. Crum was prescribed anti-seizure medication and, as a result, lost his commercial driver's license and job.
A separate workers' compensation claim was filed as a result. See Crum v. Indus. Comm'n, No. 2 CA-IC 2013-0007, ¶¶ 2-5 (memorandum decision filed Dec. 16, 2013).
¶4 In December 2011, the Industrial Commission issued findings and an award for an unscheduled permanent partial disability for his shoulder-injury claim. The Commission found Crum was "not working because of a recent seizure" and his shoulder injury had caused "a 3% permanent impairment of the whole person." However, it also found "[t]here [were] no medical contraindications which would preclude [him] returning to the same or similar work" and therefore the shoulder injury had not reduced his earning capacity.
¶5 In May 2013, Crum filed a petition for rearrangement or readjustment of compensation. During the hearings that followed, Dr. Bryce testified the shoulder impairment had increased to eleven percent, leaving Crum with a full-person-impairment rating of seven percent. In contrast, Wausau offered the opinions of Dr. Anthony Theiler, who concluded Crum had "tolerated full work duty up until the seizure activity" and his arm still had "full range of motion and full strength."
¶6 Crum also testified during the hearing, describing his desire to continue working and his difficulty finding new employment near his home in Virden, New Mexico, a relatively small and isolated town fifty miles east of Safford, Arizona. The parties stipulated that, if the ALJ found a change in Crum's condition and considered only those jobs available near Virden, then Crum "would have a total loss of earning capacity." But the parties agreed that if the ALJ also considered jobs available in Safford, there were at least some job opportunities available to Crum.
¶7 The ALJ granted Crum's petition for rearrangement or readjustment of compensation. It found that Crum had experienced a change in condition related to the shoulder injury and that "Safford [was] within [Crum's] geographical labor market." The ALJ concluded that Crum "now sustains a 63.55% loss in earning capacity, entitling him to unscheduled permanent partial disability compensation of $1,258.38 per month effective May 7, 2013."
¶8 Wausau filed a request for review, which the ALJ denied. This petition for review followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Actions.
Changed Conditions
¶9 Wausau argues the ALJ erred by finding Crum had experienced a loss in earning capacity related to his shoulder injury "despite undisputed evidence that the reduction . . . occurred due to a condition unrelated to the injury." In reviewing findings and awards of the Industrial Commission, we defer to the ALJ's factual findings, but review questions of law de novo. Grammatico v. Indus. Comm'n, 208 Ariz. 10, ¶ 6, 90 P.3d 211, 213 (App. 2004). We will not disturb an award based on conflicting medical evidence unless the ALJ's resolution of the conflict is "'wholly unreasonable.'" Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, ¶ 10, 19 P.3d 1248, 1251 (App. 2001), quoting Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985).
¶10 The Industrial Commission may rearrange a workers' compensation award "[u]pon a showing of a change in the physical condition of the employee subsequent to such findings and award arising out of the injury resulting in the reduction or increase of the employee's earning capacity." A.R.S. § 23-1044(F)(1). The claimant must show his "termination from employment, or inability to obtain suitable work, is wholly or partially due to the industrial injury or its resulting limitations." Ariz. Dep't of Pub. Safety v. Indus. Comm'n, 176 Ariz. 318, 322, 861 P.2d 603, 607 (1993); see also Gallegos v. Indus. Comm'n, 144 Ariz. 1, 4, 695 P.2d 250, 253 (1985). The claimant also must demonstrate he was unable to return to his date-of-injury employment and he made a good faith effort to obtain other suitable employment, or present testimony from a labor market expert to establish his post-injury earning capacity. Kelly Servs. v. Indus. Comm'n, 210 Ariz. 16, ¶ 8, 106 P.3d 1031, 1033 (App. 2005). The burden then shifts to the insurer to present evidence of a lack of causation or that other work is available to the claimant. Ariz. Dep't of Pub. Safety, 176 Ariz. at 322, 861 P.2d at 607; Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983). "The [insurer] may present evidence showing that the inability to obtain suitable work is due, in whole or in part, to economic or business conditions, or other factors unrelated to the industrial injury." § 23-1044(G)(1).
Our legislature amended A.R.S. § 23-1044(D) in 2009 with the express intent to overrule Arizona Department of Public Safety "to the extent that the court opinion precludes consideration of wages earned from employment from which the employee has been terminated for reasons unrelated to the industrial injury." 2009 Ariz. Sess. Laws, ch. 184, § 7. However, the holding in that case does not preclude such a consideration. Instead, it cautions that unrelated factors are significant only when "they, rather than [the] claimant's disability, caused the subsequent inability to secure work." Ariz. Dep't of Pub. Safety, 176 Ariz. at 323, 861 P.2d at 608. Thus, the 2009 amendment clarifies our supreme court's holding, but does not supersede it.
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¶11 In this case, Dr. Bryce testified he had reexamined Crum in May 2012. He described Crum's injury as a "significant rotator cuff tear" and explained that "anybody who has a rotator cuff tear of that magnitude is at increased risk for re-tearing." After evaluating the shoulder, he concluded Crum's "impairment had increased a little bit to 11 percent for his right upper extremity, and that converted now to a 7 percent full person impairment." Bryce also stated his findings were "roughly consistent" with those of Karen Lunda, a physical therapist who had performed a two-day functional capacity evaluation of Crum. Although Wausau's expert, Dr. Theiler, testified Crum could have returned to full duty without restrictions "had he not had seizure activity," it was the ALJ's responsibility to "resolve all conflicts in the evidence, especially [because] the conflicts involve[d] expert medical testimony." Post v. Indus. Comm'n, 160 Ariz. 4, 8, 770 P.2d 308, 312 (1989). Thus, we will not disturb the ALJ's decision to adopt the opinions of Dr. Bryce as the "most probably correct and well founded." See Rosarita Mexican Foods, 199 Ariz. 532, ¶ 10, 19 P.3d at 1251.
¶12 Wausau nevertheless argues there was no "causal link between the change in physical condition and the reduction in earning capacity." It points out that the "technical restrictions [that Dr. Bryce had mentioned] were not the reason [Crum] left the job." But the fact that a claimant loses his employment due to factors unrelated to his compensable injury does not create an absolute bar to rearrangement of an award. See, e.g., Ariz. Dep't of Pub. Safety, 176 Ariz. at 322-23, 861 P.2d at 607-08 (misconduct); Hoppin v. Indus. Comm'n, 143 Ariz. 118, 123, 692 P.2d 297, 302-04 (App. 1984) (multiple sclerosis, not aggravated by industrial injury); Fletcher v. Indus. Comm'n, 120 Ariz. 571, 573, 587 P.2d 757, 759 (App. 1978) (economic conditions). It is sufficient if "'his inability to secure or retain work is at least partially injury related.'" Gallegos, 144 Ariz. at 4, 695 P.2d at 253, quoting Laker v. Indus. Comm'n, 139 Ariz. 459, 462, 679 P.2d 105, 108 (App. 1984).
¶13 Wausau argues "we should look at the presumption of the actual wages earned as the basis to determine whether Crum's ability to earn was adversely affected by . . . the work injury." To support this argument, Wausau notes Crum had worked until his seizure and agreed that, "if [he] hadn't had the seizure, [he] would have kept doing the job."
¶14 "[A] claimant's actual post-injury earnings raise a presumption of commensurate earning capacity." Schuck & Sons Constr. v. Indus. Comm'n, 213 Ariz. 74, ¶ 26, 138 P.3d 1201, 1207 (App. 2006). A claimant can rebut that presumption, however, "by showing that post-injury earnings are not a true indicator of earning capacity." Laker, 139 Ariz. at 462, 679 P.2d at 108; see Midland-Ross Corp. v. Indus. Comm'n, 107 Ariz. 311, 313, 486 P.2d 793, 795 (1971) (presumption fails when "the return to work was accompanied by almost constant pain and a coemployee did much of the lifting").
¶15 Here, Crum returned to work between September 2010 and February 2011. He described having to carry large hoses weighing between fifty to one hundred pounds and stands that weighed between fifty and seventy-five pounds. Crum also was required to climb ladders and extend his arms to loosen bolts that kept sulfuric acid tanks sealed. But he stated it was particularly difficult and painful to "put tension on [his] shoulder" and to "reach[] out in front of [him] and over [his] head." And because of the injury, "it was taking [him] longer to do each load." Crum noted he was required to perform this series of tasks twenty to thirty times each day. And each series took him twenty-five to thirty minutes to complete. Crum testified that he worked "anywhere from 15 to 20 hours a day." Dr. Bryce testified that anyone who, like Crum, has sustained a rotator cuff tear "is at an increased risk of re-tearing." This evidence supports the ALJ's implicit finding that Crum's attempt to resume his employment from September 2010 to February 2011 was not a true indicator of his earning capacity. An employee "is [not] bound to his job under circumstances that his [or her] work becomes intolerable" due to constant pain and the possibility of further injury. Midland-Ross Corp., 107 Ariz. at 314, 486 P.2d at 796; see also Laker, 139 Ariz. at 462, 679 P.2d at 108 (worker seeking to rearrange because earning capacity has changed "need only show that his inability to secure or retain work is at least partially injury related"). We cannot say the ALJ committed an abuse of discretion by finding Crum had experienced a reduction in earning capacity. See Grammatico, 208 Ariz. 10, ¶ 6, 90 P.3d at 213.
Disposition
¶16 For the foregoing reasons, we affirm the ALJ's findings and award. Crum requests his attorney fees and costs on appeal pursuant to Rule 25, Ariz. R. Civ. App. P., and A.R.S. § 12-349 on the basis that Wausau's petition for review is "frivolous" and "for the 'purpose of delay.'" In our discretion, we decline to grant Crum's fees pursuant to Rule 25. See Villa De Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 27, 253 P.3d 288, 296 (App. 2011). And, the record does not show Wausau brought this appeal in bad faith or "solely or primarily for delay or harassment." A.R.S. § 12-349(A)(1)-(2), (F). However, as the successful party, Crum is entitled to his costs of appeal, contingent upon his compliance with Rule 21, Ariz. R. Civ. App. P., and Rule 4(g), Ariz. R. P. Spec. Actions. See Escobar v. Indus. Comm'n, 230 Ariz. 397, ¶ 9, 285 P.3d 318, 321 (App. 2012).