Opinion
No. 1 CA-IC 16-0023
02-16-2017
JOHN C. FOSTER, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, v. ROTECH HEALTHCARE, INC., Respondent Employer, ACE AMERICAN INSURANCE COMPANY, Respondent Carrier.
APPEARANCES John C. Foster, Buffalo, WY Petitioner Industrial Commission of Arizona, Phoenix By Jason M. Porter Counsel for Respondent ICA Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix By Lisa M. LaMont, Danielle S. Vukonich Counsel for Respondents Rotech Healthcare, Inc. and ACE American Insurance Company
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Special Action - Industrial Commission
ICA Claim No. 20133-220256
Carrier Claim No. 494C3607054-812
The Honorable Aryka S. Radke, Administrative Law Judge
AFFIRMED
APPEARANCES John C. Foster, Buffalo, WY
Petitioner Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By Lisa M. LaMont, Danielle S. Vukonich
Counsel for Respondents Rotech Healthcare, Inc. and ACE American Insurance
Company
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined. OROZCO, Judge:
The Honorable Patricia A. Orozco and Honorable John C. Gemmill, Retired Judges of the Court of Appeals, Division One, have been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award. For the following reasons, we affirm the award of the Administrative Law Judge (ALJ).
BACKGROUND
¶2 Petitioner John Foster (Foster) sustained an industrial injury to his right shoulder in November 2013 while working as a patient service technician (PST) in Arizona for Major Medical Supply, a subsidiary of Rotech Healthcare, Inc. (Rotech). Foster's duties included delivering, installing, and maintaining medical equipment for patients. He was injured while lifting a heavy liquid oxygen base into a van to be transported to a patient's home.
¶3 At Foster's request, he received treatment from an orthopedic surgeon, Thomas Carter, M.D., who previously repaired Foster's left shoulder. Dr. Carter diagnosed Foster with right shoulder rotator cuff tear and bicep tendinopathy/instability and performed two surgeries on Foster. Orthopedic surgeon Anthony Theiler, M.D., performed an independent medical examination (IME) of Foster in December 2014, finding him to be medically stationary. In January 2015, Dr. Carter also found Foster to be medically stationary. In February 2015 Foster participated in an independent functional capacity assessment (FCA) wherein he demonstrated an ability to consistently perform light work, but was restricted from carrying more than 10 pounds with the right hand.
¶4 In March 2015, the ICA issued its Findings and Award for Unscheduled Permanent Partial Disability finding Foster sustained a 2% general physical functional disability as a result of his injury, but had not sustained any loss of earning capacity (LEC). The ICA set Foster's monthly average wage rate as a PST at $4,169.11. Foster protested, asserting he did sustain a LEC. After Gretchen Bakkenson, a vocational rehabilitation and labor market consultant, performed an LEC assessment, hearings were held on the LEC issue.
¶5 In March 2016, the ALJ issued a Decision Upon Hearing and Findings and Award finding Foster did not sustain an LEC. Foster requested review of the ALJ's decision, and after the ALJ affirmed the award and findings in May 2016, he sought special action review by this court.
JURISDICTION AND STANDARD OF REVIEW
¶6 We have jurisdiction pursuant to Article VI, Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.2 and 23-951.A (West 2017), and Rule 10 of the Arizona Rules of Procedure for Special Actions. While we review questions of law de novo, we will defer to the ALJ's factual findings and view the evidence "in the light most favorable to upholding the award." Sun Valley Masonry, Inc. v. Indus. Comm'n, 216 Ariz. 462, 463-64, ¶ 2 (App. 2007). And we will affirm if the award is supported by reasonable evidence and no legal error has occurred. Delgado v. Indus. Comm'n, 183 Ariz. 129, 131 (App. 1994).
We cite to the current version of applicable statutes and rules when no revisions material to this decision have since occurred.
DISCUSSION
¶7 We construe Foster's opening brief to argue that the ALJ erred in (1) basing her decision solely on Dr. Theiler's findings when Dr. Carter was his treating orthopedic surgeon, and (2) finding that he suffered no LEC because he is unable to return to his position as a PST.
Respondents argue that Foster's opening brief lacks references to legal authority, which could be considered abandonment or waiver of his arguments. See ARCAP 13(a)(7)(A) (requiring appellant's brief to contain arguments with "citations of legal authorities and appropriate references to the portions of the record on which the appellant relies"); State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim."). However, in our discretion, we decide this appeal on its merits based on our own review of the record. See Adams v. Valley Nat'l Bank of Ariz, 139 Ariz. 340, 342 (App. 1984) (recognizing that courts prefer to decide each case upon its merits rather than dismissing on procedural grounds). --------
¶8 Both Drs. Carter and Theiler testified that from an objective standpoint, Foster's two surgeries were successful; he had full range of motion while under anesthesia and his rotator cuff was intact. After further independent diagnostics revealed no notable findings, they concluded that Foster was self-limiting his range of motion as it was difficult to explain why he subjectively continued to express complaints.
¶9 The only conflicting medical opinion testimony here regarded work restrictions. Dr. Carter opined that Foster should be restricted to occasional but not frequent or constant lifting above shoulder height. He did not specify a weight limitation. Whereas, Dr. Theiler believed no objective basis existed to place Foster on work restrictions because his rotator cuff was intact and he was not at risk to reinjure his shoulder. Dr. Theiler further testified that his opinion was not swayed by the FCA results. He stated that the orthopedic literature did not validate such assessment of a person's objective ability to perform work. It was merely a subjective representation of an individual's work capacity on any given day.
¶10 When conflicting medical evidence is presented, the ALJ is tasked with resolving the conflict. Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, ¶ 15 (App. 2006). Despite Foster's assertion to the contrary, the ALJ specifically "adopt[ed] Dr. Carter's work restrictions as more well-founded and more probably correct," meaning Foster was restricted to occasional, not frequent lifting above shoulder height. The ALJ concluded, however, that the record in totality did not support the 10-pound weight restriction as provided in the FCA. Because reasonable evidence supports the ALJ's determination, we will not disturb it on appeal. See Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979).
¶11 Next, Foster contends he suffered an LEC because he is unable to return to his position as a PST. Foster testified that after two surgeries and physical therapy, he still has pain and his range of motion is restricted; he cannot lift his arm waist high off to the side or shoulder high out to the front; and he cannot lift any weight in the right arm. Foster initially bore the burden to prove he suffered an LEC, which can be carried by evidence of his inability to perform the job of PST and that he was unable, after reasonable effort to obtain employment, to secure other work he can perform given his physical impairments. Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580 (1983).
¶12 Foster testified he is a 64-year-old high school graduate with one semester of college. He worked as a PST with Rotech for eight years, and as a contractor consultant at Home Depot for the five years prior. Foster and his wife opted to move to Wyoming in June 2015 after she was offered a job there while on vacation. Despite applying for jobs such as custodian and cashier, Foster has not worked since sustaining the injury in November 2013 and spends his days watching TV, hiking, fishing, and doing some yard work.
¶13 The only expert testimony regarding LEC was elicited from consultant Bakkenson. She testified to having reviewed Foster's occupational background, medical records, and the FCA report. Bakkenson reached two opinions depending upon which the ALJ would find more probably correct. First, in light of the opinions of Drs. Carter and Theiler, Foster was capable of returning to date of injury employment as a PST and suffered no LEC. Alternatively, given Foster's demonstrated abilities during the FCA, he was not able to return to date of injury employment, was employable as an unarmed security guard based upon medical suitability, and would suffer a monthly loss of $2,174.20. Her LEC analysis was based upon employers in the Phoenix market who indicated unarmed security guard positions were reasonably available in the labor market for Foster and they would consider someone fitting his profile. See Zimmerman, 137 Ariz. at 581 ("[W]here the claimant voluntarily moves from the labor market where the injury was sustained, findings regarding his loss of earning capacity may be based on the job market in either his new residence or in the locality where the injury was sustained.").
¶14 The ALJ accepted Bakkenson's opinion. And based upon her adoption of Dr. Carter's recommended work restrictions of only occasional lifting above shoulder height, found that Foster could return to date of injury work as a PST and did not sustain an LEC. We find no error.
CONCLUSION
¶15 Because we find that the evidence of record reasonably supports the ALJ's award and decision upon review, we affirm.