Four seasons/am Zurich v. Cvijetic ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FOUR SEASONS RESORT SCOTTSDALE, Petitioner Employer,
AMERICAN ZURICH INSURANCE COMPANY, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
PETKO CVIJETIC, Respondent Employee.
No. 1 CA-IC 16-0039
FILED 6-13-2017
Special Action - Industrial Commission
ICA Claim No. 20110-840193
Carrier Claim No. 2080234273001
J. Matthew Powell, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Lester, Norton & Brozina, P.C., Phoenix
By Rachel P. Brozina, Steven C. Lester, Christopher S. Norton
Counsel for Petitioners Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Snow, Carpio & Weekley, PLC, Phoenix
By Chad T. Snow
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.
G E M M I L L, Judge:
¶1 Petitioner employer, Four Seasons Resort Scottsdale and
petitioner carrier, American Zurich Insurance Company (collectively
“American”), seek special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for permanent total
disability benefits, arguing the administrative law judge (“ALJ”) erred in
finding that Petko Cvijetic, the respondent employee, sustained a total loss
of earning capacity (“LEC”) as a result of the industrial injury. Because the
evidence reasonably supports the ALJ’s award and no legal error occurred,
we affirm.
BACKGROUND
¶2 On August 16, 2010, Cvijetic injured his low back while
working as a laundryman for Four Seasons. He filed a workers’
compensation claim, which was accepted for benefits by American Zurich.
Cvijetic received conservative medical treatment including physical
therapy, but he reported “no improvement in change in his symptoms.”2
Following an independent medical examination (“IME”) finding Cvijetic
stationary with no permanent impairment, American issued a notice of
claim status which terminated benefits effective August 8, 2011.
1 The Honorable John C. Gemmill, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2 The medical records also reveal a prior industrial injury that
occurred in September 2009, when Cvijetic was struck in the low back by a
golf cart operated by his coworkers.
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¶3 Cvijetic protested the closure of his claim and the ICA held a
hearing as to whether Cvijetic was medically stationary and thereafter
entered an award allowing his claim to remain open for continuing medical
benefits. Following a repeat IME in July 2013, Cvijetic’s claim was closed
with no permanent impairment. Cvijetic protested, an ICA hearing was
held, and an ALJ entered an award finding Cvijetic stationary with an
unscheduled permanent partial impairment and referred the claim to the
ICA for an LEC determination.3 The ICA entered an administrative award
finding that Cvijetic had sustained a 15% permanent impairment and a
32.85% LEC, and that he was entitled to receive $329.44 per month in
permanent disability benefits.
¶4 Cvijetic timely requested an ICA hearing, and the ALJ heard
testimony from Cvijetic, his treating physician, Sanjay Patel, M.D., an
independent medical examiner, Gary J. Dilla, M.D., and two labor market
experts, Richard A. Prestwood and Lisa A. Clapp. The ALJ entered an
award for permanent total disability benefits. American requested
administrative review, but the ALJ affirmed the award. American next
brought this special action. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rules
of Procedure for Special Actions 10.
ANALYSIS
¶5 When reviewing the ICA’s findings and awards, we defer to
the ALJ’s factual findings and consider the evidence in the light most
favorable to upholding the award, but review questions of law de novo.
Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003); Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶6 American argues that the ALJ legally erred by finding that
Cvijetic sustained a total LEC as a result of the industrial injury, because he
did not make a good faith search for post-injury work. The burden of
proving an LEC is on the claimant. See, e.g., Zimmerman v. Indus. Comm’n,
137 Ariz. 578, 580 (1983). Cvijetic has an affirmative burden to establish his
inability to return to date-of-injury employment and either make a good
faith effort to obtain other suitable employment or present testimony from
a labor market expert to establish his residual earning capacity. See D’Amico
3 The ICA makes an initial determination of whether a permanent
impairment has resulted in an LEC. See Ariz. Rev. Stat. § 23-1047(A).
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v. Indus. Comm’n, 149 Ariz. 264, 266 (App. 1986); see also Landon v. Indus.
Comm’n, 240 Ariz. 21, 26–27, ¶ 18 (App. 2016).
¶7 Cvijetic testified that after his industrial injury, he returned to
light duty work at Four Seasons, but was let go when he was unable to
perform his regular work. Both testifying physicians confirmed that
Cvijetic could no longer perform his regular work as a laundryman.
Dr. Patel testified that Cvijetic could return to work “in some sort of
modified capacity,” and Dr. Dilla stated that Cvijetic could work “in a light
medium capacity.” 4
¶8 Cvijetic did not perform a good faith work search because he
did not believe he could perform sedentary work nor work within
Dr. Patel’s recommended work restrictions. He testified that he only looked
for work following the industrial injury so that he could receive a monthly
benefit, and he had not looked for work during the past three years.
¶9 Instead of proving a good faith work search, Cvijetic
presented expert labor market testimony from Mr. Prestwood. See D’Amico,
149 Ariz. at 266; see also Landon, 240 Ariz. at 26–27, ¶ 18. In an LEC
proceeding, the medical expert’s role is to identify the claimant’s
anatomical or functional impairments. See, e.g., Adkins v. Indus. Comm’n, 95
Ariz. 239, 243 (1964). The labor market expert’s role is to receive that
medical input from the treating physicians regarding the claimant’s
physical capabilities and match it to the requirements of specific jobs in the
open labor market. See Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550, 556
(App. 1987).
¶10 In this case, the ALJ resolved the medical conflict between the
key opinions expressed by the physicians in favor of Cvijetic’s treating
physician, Dr. Patel. See Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975)
(explaining that when expert medical testimony conflicts, it is the ALJ’s
duty to resolve those conflicts). Dr. Patel testified that the industrial injury
permanently aggravated Cvijetic’s preexisting degenerative disc disease by
causing several lumbar disc herniations. The doctor identified the
4 An opinion of a physician, however, absent proof that the physician
possessed special knowledge of job requirements, is insufficient to prove a
claimant is physically capable of performing a specific job. See Atkins v.
Indus. Comm’n, 95 Ariz. 239, 243 (1964); Davis v. Indus. Comm’n, 16 Ariz.
App. 535, 537–38 (1972).
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mechanism of injury as both being struck in the low back by a golf cart (in
2009) and lifting 150 pounds of towels (in 2010).
¶11 Dr. Patel testified that due to “significant ongoing pain,”
Cvijetic is limited to working six hours per day, thirty hours per week.
During a workday, Cvijetic can stand and walk for a total of one hour. He
can sit for thirty minutes, stand for fifteen minutes, and walk for ten
minutes; squat, crawl, and climb occasionally; lift and carry ten pounds
continuously, twenty pounds frequently, and up to fifty pounds
occasionally. Cvijetic also uses a cane due in part to the residual impact of
the industrial injury. Dr. Patel noted that he communicated with Cvijetic
through an interpreter, because he speaks Serbian.
¶12 In establishing an LEC, the objective is to determine as nearly
as possible whether the claimant can sell his services in the open,
competitive labor market, and for how much. Davis v. Indus. Comm’n, 82
Ariz. 173, 175 (1957). 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 can perform after the injury, any wages
received for work performed after the injury, and the age of the employee
at the time of injury. See A.R.S. § 23-1044(D).
¶13 Prestwood performed an earning capacity evaluation. He
interviewed Cvijetic through a bilingual translator. The fifty-nine-year-old
claimant had twelve years of formal education in Bosnia, where he worked
in construction. He immigrated to the United States as a refugee in 1999,
and his primary languages remain Serbo-Croatian and Russian.
¶14 In the U.S., Cvijetic’s work experience consisted of installing
swimming pool tile and being a stone mason, a dishwasher, a hotel
laundryman, and performing Taser assembly work. Relying on this
information in combination with Dr. Patel’s work restrictions, Prestwood
testified that Cvijetic is not readily employable in the open labor market. It
was his opinion that Cvijetic is an “odd-lot” employee, and has sustained a
total LEC.
¶15 An odd-lot employee is one who is sufficiently injured that
the services he can perform are so limited in quality, dependability, or
quantity that a reasonably stable labor market for him does not exist. See
Zimmerman, 137 Ariz. at 581 n.1. As recognized by Professors Larson, this
designation does not require “utter and abject helplessness” before a
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claimant can be considered to have a permanent total disability. 7 Arthur
Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 83.01, at
83-2 (Supp. 2016).
¶16 Prestwood testified that thirty-hour-per-week jobs are rare in
this economy. Based on Cvijetic’s industrially related physical restrictions,
Prestwood concluded he cannot return to any of his previous types of
employment and his prior employment does not provide him with any
transferable skills. Further, Prestwood explained that very few employers
have other employees that could translate for Cvijetic with his language
restrictions.
¶17 The ALJ adopted Prestwood’s opinion as more probably
correct, and based on his testimony, found that the odd-lot doctrine
applied. Once a claimant is found to be an odd-lot employee, the burden
of going forward with contrary evidence shifts to the employer and carrier.
See, e.g., Zimmerman, 137 Ariz. at 580. Although American argues that
without a good faith work search, the burden did not shift, we disagree.
D’Amico and Landon allow a claimant to meet his burden of proof by
presenting expert testimony.
¶18 Although American presented labor market testimony from
Ms. Clapp to establish suitable and reasonably available employment for
Cvijetic, the ALJ resolved the testimonial conflict in favor of Prestwood’s
opinions. See Rent A Center v. Indus. Comm’n, 191 Ariz. 406, 408, ¶ 3 (App.
1998) (confirming an ALJ is free to resolve conflicts in expert testimony by
adopting the opinion of one labor market expert over another); see also
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988) (explaining
resolution of conflicting expert opinions may include consideration of each
expert’s qualifications, experience, and basis for opinion).
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CONCLUSION
¶19 Based on the ALJ’s permissible resolution of the evidentiary
conflicts, the record supports her finding that Cvijetic is not currently
employable in the open labor market. Because the ALJ also properly
applied the law, we affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: JT
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