Nieves v. Agrium us/ace ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MAX NIEVES, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
AGRIUM U.S., INC., Respondent Employer,
ACE AMERICAN INSURANCE CO. C/O ESIS/ACE USA (AZ),
Respondent Carrier.
No. 1 CA-IC 14-0068
FILED 7-21-2015
Special Action – Industrial Commission
ICA Claim No. 20101-940007
Carrier Claim No. C494C1679073/888
Joann C. Gaffaney, Administrative Law Judge Retired
AWARD AFFIRMED
COUNSEL
Barton Baker, Attorney at Law, Yuma
By Barton L. Baker
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Diane M. Johnsen joined.
C A T T A N I, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review denying any disability
benefits. Claimant Max Nieves presents one issue on appeal: whether the
administrative law judge (“ALJ”) improperly relied on the opinion of labor
market expert Lisa Clapp in concluding that he has not suffered a loss of
earning capacity (“LEC”). For reasons that follow, we affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 On April 15, 2010, Nieves suffered a shoulder injury while
working as a truck driver for the respondent employer, Agrium US Inc.
(“Agrium”). His condition eventually became medically stationary, and his
claim was closed with a one percent unscheduled permanent partial
impairment. The ICA then entered its findings and award for a 53.02%
LEC, which entitled Nieves to receive $780.02 per month in disability
benefits. Nieves timely protested the ICA’s award.
¶3 The ALJ heard testimony from Nieves and two labor market
experts, then found that Nieves had no LEC. Nieves requested
administrative review, and the ALJ supplemented and affirmed the award.
¶4 Nieves then brought this appeal. This court has jurisdiction
under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(2), 23-951(A),
and Arizona Rule of Procedure for Special Actions 10.1
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
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NIEVES v. AGRIUM US/ACE
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DISCUSSION
¶5 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 the 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).
¶6 Nieves argues that the ALJ erred by adopting Clapp’s
testimony that work as a “no touch” truck driver was suitable and
reasonably available employment for him. To establish a claimant’s
residual earning capacity, there must be evidence of job opportunities that
are (1) suitable, i.e., which the claimant could reasonably be expected to
perform considering his physical capabilities, education, and training and
(2) reasonably available. See Germany v. Indus. Comm’n, 20 Ariz. App. 576,
580, 514 P.2d 747, 751 (1973).
¶7 The burden of proving an LEC is on the claimant. See
Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983).
The claimant must establish he is unable to return to date-of-injury
employment and also must either present evidence of a good-faith effort to
obtain other suitable employment or testimony from a labor market expert
to establish his residual earning capacity. See D’Amico v. Indus. Comm’n, 149
Ariz. 264, 266, 717 P.2d 943, 945 (App. 1986). If the claimant testifies he
made a good-faith effort but could not find work, the burden of going
forward with contrary evidence to establish suitable and reasonably
available employment shifts to the employer and carrier. Zimmerman, 137
Ariz. at 580, 672 P.2d at 924.
¶8 In this case, Nieves performed a good-faith work search and
presented testimony from labor market expert Erin Welsh. Welsh testified
she agreed with the ICA’s findings and award, which concluded that
Nieves could work full time as a fast food worker and earn minimum wage.
¶9 To meet the shifted burden of proof, Ace American Insurance
Co. (“Ace”) presented testimony from Clapp, who agreed Nieves could
work in a fast food restaurant. But Clapp also testified that work as a “no
touch” truck driver was suitable for and reasonably available to Nieves and
would result in no LEC. Clapp explained that a “no touch” truck driver
does not have to load or unload cargo. This type of driving typically is
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NIEVES v. AGRIUM US/ACE
Decision of the Court
regional, with trips limited to one to three days.2 Clapp testified that this
job constitutes medium-duty work, and that Dr. Bailie’s medical report did
not contain any findings that would suggest that Nieves would be unable
to perform such work. Clapp noted that after his industrial injury, Nieves
had renewed his commercial driver’s license (“CDL”), which required him
to pass a medical examination, and he had work experience performing this
type of driving.3 Nieves testified that he has been looking for work as a
driver, and that he has previously worked as a driver, including driving
trucks locally, throughout “the whole border area,” and “towards Flagstaff,
. . . Phoenix, and El Centro, California.” He also acknowledged driving a
truck to the Oakland, California area.
¶10 The labor market expert’s role is to consider input from the
treating physician regarding the claimant’s physical capabilities and to
match them to requirements of specific jobs in the open labor market. See
Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550, 556, 744 P.2d 462, 468 (App.
1987). Although the expert’s experience and training render his or her
opinion admissible, “this type of evidence is not so completely outside the
understanding of the average layman, that a contrary conclusion cannot be
reached.” Le Duc v. Indus. Comm’n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227
(App. 1977). “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.” Id.
¶11 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 performed subsequent to the injury and the
age of the employee at the time of injury.” See A.R.S. § 23-1044(D). In this
case, the ALJ resolved the conflict between the labor market experts in favor
of Clapp’s testimony and found that Nieves could work as a “no touch”
truck driver with no LEC.
¶12 Nieves asserts that Clapp failed to present an accurate picture
of his limited English language skills to prospective employers, and for that
2 Clapp contrasted this with over-the-road truck drivers, who drive
from coast to coast and may be on the road for up to three weeks at a time
virtually living out of their trucks.
3 On cross-examination, Welsh agreed that Nieves has a current CDL
and that the medical report relating to his injury did not suggest that Nieves
would be precluded from working as a “no touch” truck driver.
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NIEVES v. AGRIUM US/ACE
Decision of the Court
reason, the jobs that she proposed are not suitable for or reasonably
available to him. We disagree.
¶13 Clapp testified regarding the profile she presented to
prospective employers:
Q. [By Nieves’s counsel] Okay. Did your profile of Mr. Nieves
include the fact that he had very limited English, spoke
mainly only Spanish?
A. [Clapp] It indicated that his English was limited but that
that had not precluded him from working as a truck driver
for many years prior to that.
Q. Well, it didn’t preclude him in Yuma, Arizona, where most
of the people are Hispanic, but did you ask these employers
that you surveyed here - - did you tell them that he primarily
spoke only Spanish?
A. I did not. And Mr. Nieves testified himself that he drove a
truck in California and in Arkansas as well which is where he
learned most of his English.4
Q. Well, let me - - let me correct you. I believe he worked for
Tyson at a poultry plant in Arkansas.
A. He also reported that he drove a truck up there.
Q. Okay. Did you ask any of these truck positions that you
surveyed whether or not language made a difference to them
in decision to hire a person, whether they could take
directions and, you know, that kind of thing in Spanish?
A. You know, I didn’t ask that question in particular. I went
out on a limb and assumed because he had worked for at least
three different employers as a truck driver and his English-
speaking capabilities didn’t preclude him from doing that
4 Clapp reviewed Nieves’s January 29, 2013 deposition testimony as
part of her LEC evaluation. Clapp stated that Nieves had indicated that he
can understand a little English, and that he learned English when he
worked in Arkansas packing chicken for Tyson.
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NIEVES v. AGRIUM US/ACE
Decision of the Court
that he had demonstrated enough proficiency to get by with
what he would need as a truck driver.
Q. Okay. You just made the assumption that it wouldn’t
matter?
A. I made the assumption that because he had demonstrated
the ability to work as a truck driver for at least three
employers previously and do so successfully where his
English-speaking capability was not an issue that he would
be able to do that post-injury.
Thus, although Clapp acknowledged that she did not specifically ask
prospective employers whether English skills were required, she correctly
informed them that Nieves’s English was limited.
¶14 We conclude that the ALJ did not abuse her discretion by
finding that Clapp accurately portrayed Nieves to prospective employers,
that Nieves was looking for work as a truck driver, had a current CDL, and
had successfully worked as a driver for several different companies.
Accordingly, we affirm the ALJ’s determination that Nieves has not
suffered a loss of earning capacity.
CONCLUSION
¶15 The award is affirmed.
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