Opinion
2 CA-IC 2020-0007
08-06-2021
Vail Unified School District no. 20, Petitioner Employer, v. The Industrial Commission of Arizona, Respondent, The Arizona School Alliance for WC, inc., Petitioner Insurer, Patrick Daniel Respondent Employee.
Moeller Law Office, Tucson By M. Ted Moeller and Karolyn F. Keller Counsel for Petitioners Employer and Insurer The Industrial Commission of Arizona, Phoenix By Gaetano Testini Counsel for Respondent Dix &Forman P.C., Tucson By J. Stephen Dix Counsel for Respondent Employee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action - Industrial Commission ICA Claim No. 20170650375 Insurer No. 2016002937A LuAnn Haley, Administrative Law Judge
Moeller Law Office, Tucson
By M. Ted Moeller and Karolyn F. Keller
Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix
By Gaetano Testini
Counsel for Respondent
Dix &Forman P.C., Tucson
By J. Stephen Dix
Counsel for Respondent Employee
Presiding Judge Espinosa authored the decision of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
ESPINOSA, PRESIDING JUDGE
¶1 In this statutory special action, Vail Unified School District No. 20 and the Arizona School Alliance for WC, Inc. (collectively "Vail") challenge the administrative law judge's (ALJ) decision awarding Patrick Daniel $292.93 in monthly loss of earning capacity benefits. Vail argues the ALJ erred by relying on a witness whose testimony lacked foundation and by adopting an improper calculation for the amount of the entitlement. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the Industrial Commission's award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2 (App. 2007). In February 2017, while working for Vail and training as a bus driver, Patrick Daniel struck his head entering a school bus, with sufficient force to cause a spinal injury. His workers' compensation claim was accepted as compensable, and the ALJ ultimately found that Daniel had a symptomatic right disc herniation at L5-S1 resulting in an unscheduled permanent impairment of his lumbar spine. It was determined, however, that he suffered no reduction in earning capacity. Daniel filed a request for hearing protesting that determination.
¶3 Following a series of hearings in which Daniel, his physical therapist, Vail's independent medical examiner (IME), and two labor market experts testified, the ALJ credited the IME's determination that Daniel is not limited in getting in and out of a car frequently and the physical therapist's opinion that Daniel "should be able to work as long as he is able to change positions," but that he "should not lift greater than 40 [pounds] at any position." In view of the labor market testimony and the work restrictions described by the physical therapist, the ALJ found "a delivery driver is the most appropriate position for . . . Daniel when considering his loss of earning capacity entitlement" and calculated an award of $292.93 per month.
¶4 Vail requested review of the ALJ's decision, arguing, as relevant here, that the physical therapist's testimony lacked foundation because she did not have knowledge of Daniel's medical history or any diagnostic studies and the ALJ therefore erred in relying on it. The ALJ issued a decision upon review affirming the award. Vail then brought this statutory special action, invoking our jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) and 23-948.
Discussion
¶5 Under A.R.S. § 23-1044(C), if an industrial injury causes permanent partial disability for work, the employee is entitled to compensation based on the "employee's reduced monthly earning capacity resulting from the disability." "[T]he determination of whether an injured worker has sustained a 'permanent disability,' i.e., a loss of earning capacity, is a two-step process. Only after a permanent physical or functional impairment has been found does the question of loss of earning capacity arise." Hunter v. Indus. Comm'n, 130 Ariz. 59, 60-61 (App. 1981). An employee's loss of earning capacity is based on the injured worker's ability to be employed, Franco v. Indus. Comm'n, 130 Ariz. 37, 39 (App. 1981), and requires consideration of "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 after the injury, any wages received for work performed after the injury and the age of the employee at the time of injury." § 23-1044(D). While determination of a permanent impairment is a medical question, evaluation of a permanent disability is a legal one. Hunter, 130 Ariz. at 61.
¶6 As noted by the ALJ, Daniel had proven the prerequisite permanent impairment due to his industrial injury; a seven-percent impairment to his low back. Thus, the relevant inquiry for the ALJ was the determination of Daniel's disability, taking into account the factors described above. See § 23-1044(D). While Vail's IME opined that there was no reason to impose work restrictions on Daniel, Daniel's physical therapist, Stacey Simons, testified that as a result of his low back pain, in any employment, Daniel would "need to be able to change position at least every 15 to 30 minutes" and should lift no more than forty pounds.
Physical Therapist's Testimony
¶7 Vail maintains Simons lacked foundation "to determine industrially-related functional limitations and work restrictions" because she had not reviewed Daniel's medical records or diagnostic imaging. As noted by the ALJ in its decision upon review, however, Simons's testimony was founded on her experience as a licensed physical therapist and her own examinations and observations of Daniel in the course of her treatment for his low back pain. See Ariz. R. Evid. 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed."). Thus, she could properly opine as to Daniel's general work limitations in light of his impairment, which were then utilized by both labor market experts to evaluate loss of earning capacity. See Tucson Steel Div. v. Indus. Comm'n, 154 Ariz. 550, 556 (App. 1987) (approving admission of evidence from labor market experts who received medical information from caregivers regarding physical capabilities and limitations and matching them to requirements of specific jobs in labor market); cf. Adkins v. Indus. Comm'n, 95 Ariz. 239, 243 (1964) (medical evidence competent to show causal relationship between injury and resulting disability but not effect on earning capacity).
¶8 To the extent Vail contends the ALJ accorded too much credence to Simons's testimony in light of the deficiencies in her knowledge of Daniel's medical history compared to its medical expert, we note that Vail highlighted such deficits while cross-examining Simons. And the ultimate determination of how much weight to give the evidence was a matter entirely within the ALJ's purview. See Madison Granite Co. v. Indus. Comm'n, 138 Ariz. 573, 577 n.3 (App. 1983) (weight to give witness testimony "solely within the discretion of the ALJ"); Perry v. Indus. Comm'n, 112 Ariz. 397, 398 (1975) (appellate court does not "weigh the evidence").
Calculation of Loss of Earning Capacity
¶9 Vail next argues the ALJ improperly adopted Daniel's labor market expert's calculation for his loss of earning capacity entitlement. Following his injury, Daniel was employed as a pizza delivery driver and submitted to the ALJ payroll records reflecting his gross pay from that position. Both Vail and Daniel submitted reports from their labor market experts regarding Daniel's loss of earning capacity. The experts calculated different monthly entitlements, assuming Daniel was capable of work as a parking lot attendant. After receiving those reports, the ALJ requested calculations from the experts taking into account Daniel's post-injury employment as a pizza delivery driver. Daniel's expert thereafter submitted an analysis using Daniel's gross year-to-date wages, inclusive of his base pay of $8.00 per hour and tips, and calculated a monthly entitlement of $351.23 based on ten-month post-injury earnings and $292.93 assuming twelve-month post-injury earnings. Vail's expert also submitted a report based on the payroll record and calculated several entitlements based on different assumptions, the highest calculation being $180.36 and the lowest $71.54. Both experts testified regarding their calculations, and Daniel's expert explained why her calculations differed from Vail's expert-namely because Daniel's expert used his actual wages earned over several pay periods, including base pay and tips, whereas Vail's expert projected tips based on one pay period, and in one instance based the calculation on Daniel's testimony of what he thought he earned rather than the payroll record. The ALJ credited portions of both experts' testimony in determining Daniel's monthly loss of earning capacity benefit of $292.93.
¶10 Vail contends the ALJ erred by relying on Daniel's expert's calculation, claiming the award-based on less than minimum wage-"is not in line" with Daniel's "realistic post-injury earning capacity." This argument, however, was not raised below, either at the hearing or in Vail's request for review. The argument is therefore waived, and we need not address it. See Larson v. Indus. Comm'n, 114 Ariz. 155, 158 (App. 1976) ("We will not consider on review an issue not raised before the Industrial Commission where the petitioner has had an opportunity to do so.").
¶11 Moreover, notwithstanding waiver, Vail has provided no authority that post-injury earning capacity must be based on at least minimum wage. See § 23-1044(D) (listing factors to consider in determining earning capacity); Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 584 (1983) (determination of loss of earning capacity should be based "as near as possible" on whether a claimant "can probably sell his services and for how much" (quoting Dye v. Indus. Comm'n, 23 Ariz.App. 68, 70 (1975) (Jacobson, J., specially concurring))). The ALJ's award here is supported by reasonable evidence. See Schneidewind v. Indus. Comm'n, 120 Ariz. 363, 365 (App. 1978) ("This Court will uphold the Industrial Commission's award as to the loss of earning capacity if there is any reasonable evidence to support the award."); see also Lovitch v. Indus. Comm'n, 202 Ariz. 102, ¶ 16 (App. 2002) (affirming ALJ's award "if it is reasonably supported by the evidence"). And to the extent Vail contends the experts provided conflicting opinions, such conflicts were for the ALJ-not this court-to resolve. See Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, ¶ 10 (App. 2000).
Senor T's Restaurant v. Industrial Commission, cited by Vail, recognizes that when determining a pre-injury wage base, tips should be included because
waiters, waitresses, bartenders and the like, in most instances receive a substantial portion of their earnings in the form of tips. The hourly wage paid by the employer is quite low and is often less than the federal minimum wage . . . [because] both the employer and employee contemplate that tips will constitute part of the compensation under the contract of employment.131 Ariz. 360, 363 (1982). Notably, Daniel's expert's calculation of his postinjury earning capacity, upon which the ALJ relied, was based on his actual post-injury earnings including both hourly base pay and tips. See Schuck &Sons Constr. v. Indus. Comm'n, 213 Ariz. 74, ¶ 26 (App. 2006) (Although not necessarily conclusive, "it is well-established that a claimant's actual postinjury earnings raise a presumption of commensurate earning capacity.").
Disposition
¶12 The ALJ's award is affirmed.