Safelite group/ace American v. Ordaz ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SAFELITE GROUP DBA SAFELITE AUTO GLASS, Petitioner Employer,
ACE AMERICAN INSURANCE CO., Petitioner Carrier
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
JULIO ORDAZ, Respondent Employee.
No. 1 CA-IC 20-0014
FILED 12-15-2020
Special Action - Industrial Commission
ICA Claim No. 20132-050050
Carrier Claim No. 30130819780-0001
The Honorable Amy L. Foster, Administrative Law Judge
AFFIRMED
COUNSEL
Quintairos, Prieto, Wood & Boyer, P.A., Phoenix
By Terence N. Cushing, Rita J. Bustos
Counsel for Petitioner Employer and Petitioner Carrier
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Taylor & Associates, P.L.L.C., Phoenix
By Chris Gulinson
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 This statutory special action arises out of an Industrial
Commission of Arizona (“ICA”) award finding that Julio Ordaz suffered a
66.25% loss of earning capacity (“LEC”) due to an unscheduled industrial
injury. Petitioners Safelite Group dba Safelite Auto Glass (“Safelite”) and
Ace American Insurance Co. argue that the evidence does not support the
findings of the administrative law judge (“ALJ”). However, the record
demonstrates evidence supporting the ALJ’s findings; accordingly, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Ordaz is a fifty-eight-year-old man who worked in the auto
glass industry for over thirty years until he injured his back while working
for Safelite as a windshield installer in 2013. His injury eventually required
a multi-level surgical fusion of his lower spine in May 2017. His medical
condition became stationary in May of 2018, and his treating surgeon
assigned a 15% permanent impairment as a result of the industrial injury.
The ICA administratively calculated that Ordaz had sustained a 38.14%
LEC. Both Safelite and Ordaz challenged that finding by requesting a
hearing.
¶3 An ICA ALJ heard testimony from three witnesses called by
Ordaz: Dr. Paul R. W. Gause, an orthopedic surgeon specializing in spinal
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surgery and Ordaz’s treating surgeon; Gayle Tichauer, a labor market
consultant; and Ordaz. Safelite did not call any witnesses.
¶4 Dr. Gause described Ordaz’s permanent work restrictions as
infrequent lifting of no more than thirty pounds and only lifting from waist
level, not from the ground. He recommended Ordaz should limit bending
or twisting at the waist to no more than ten times per hour, and should not
sit or stand in one place for more than one hour at a time without several
minutes of movement every hour.
¶5 Ordaz testified that in June 2018, Safelite offered him a full-
time job as a “Repair Medic,” repairing windshield chips and cracks. He
was familiar with what that job entailed and began the training for it but
only lasted a half-day before back pain caused him to go home early and
not return. Ordaz testified that the job required bending and kneeling,
which was physically challenging for him. Getting access to some
windshield cracks on certain types of vehicles involved body positions that
were difficult for him, including climbing on the top of vehicles. The job
also required the technician to vacuum the floorboards, which required
repetitive bending or kneeling. Ordaz testified that he tried the training but
could not physically perform the job because of the pain and his back
limitations. He also testified that he had tried to find other jobs that he
could perform with his work restrictions, but could not find an employer
who would offer him a position.
¶6 Labor market consultant Gayle Tichauer prepared an LEC
report for Ordaz. She considered Dr. Gause’s work restrictions and
concluded that Ordaz could not return to his pre-injury employment, nor
could he perform the duties required of a windshield “Repair Medic” or
auto glass technician. She testified that Ordaz had only completed six years
of formal schooling, was not computer literate (he does not type or use
email), and could not make change in a cash transaction. He also has
trouble reading and writing in both English and Spanish. Based on that
information, she concluded that he could not work any job “above an
unskilled level.” Therefore, she opined that a suitable position for Ordaz
would be cleaning offices as part of a cleaning crew, where he could get
help with some of the tasks that required lifting or bending. That job, she
testified, would accommodate his work restrictions and be suitable for his
level of education. This work is also “reasonably available in the
metropolitan Phoenix area.” Using the office cleaning job as the
benchmark, she calculated that Ordaz had sustained a 66.25% LEC.
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¶7 As noted, Safelite did not present any testimonial evidence;
instead, they argued that Ordaz had not made a good-faith effort to obtain
suitable employment and, therefore, had not met his burden of proving an
LEC other than the one administratively calculated by the Claims Division.
The ALJ considered but ultimately rejected that argument and agreed with
Tichauer’s opinions; accordingly, the ALJ found a 66.25% LEC resulting in
a monthly benefit of $1,525.27. Upon administrative review, the ALJ
described Ordaz’s testimony as “credible” and affirmed the LEC award.
This appeal followed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(B) and 23-951(A).
ANALYSIS
¶8 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 (App. 2003); Hoffman v. Brophy, 61 Ariz.
307, 312 (1944) (explaining the court will uphold an award “if there is any
competent evidence in the record to sustain [it]”). Viewing the evidence in
the light most favorable to sustaining an award, we will affirm the decision
unless there is no reasonable basis for it. Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105, ¶ 16 (App. 2002).
¶9 The injured employee bears the burden of establishing each
element of a claim. Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977).
To show an LEC, an injured worker must demonstrate an “inability to
perform the job at which he was injured and to get other work which he can
perform in light of his physical impairments.” Zimmerman v. Indus.
Comm’n, 137 Ariz. 578, 580 (1983). Generally, one can meet this burden by
showing that the industrial injury prevents a return to the prior
employment and that there has been a reasonable effort to find work in the
area of residence. Id. Factors to consider when determining an LEC
include, but are not limited to, work history, work restrictions, and age at
the time of injury. A.R.S. § 23-1044(D). The worker’s “residual earning
capacity can only be established by evidence of job opportunities that are
both (1) suitable, i.e.: of the type claimant could reasonably be expected to
perform in light of his impaired physical or mental condition, and (2)
reasonably available.” Zimmerman, 137 Ariz. at 582.
¶10 An injured worker must mitigate damages by making a good-
faith effort to look for suitable work. Hoffman, 61 Ariz. at 314. An injured
worker can also satisfy this duty by “conceding his residual capacity to do
light work” reasonably available to him. D’Amico v. Indus. Comm’n, 149
Ariz. 264, 268 (App. 1986). Here, Ordaz did both. He testified that he tried
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to find alternative work and described his efforts. The ALJ found his
explanation credible, and we cannot say that conclusion was unreasonable.
Also, Ordaz presented evidence through a labor market consultant that he
could perform light duty work required of an office cleaner and that such
work was reasonably available to him. The ALJ’s findings are supported
by the record.
¶11 Safelite’s argument on appeal is twofold. First, they contend
that Ordaz did not make a good-faith effort to find employment. The ALJ
disagreed and reasonably found otherwise based on Ordaz’s credible
testimony. The credibility of witnesses, including the claimant, is
determined by the ALJ and “is beyond the limited role of the reviewing
court.” Villanueva v. Indus. Comm’n, 148 Ariz. 285, 288 (App. 1985). Second,
Safelite argues that Tichauer’s conclusions were foundationally flawed
because she did not describe the specific duties of an office cleaner or how
Ordaz would perform them, and she did not “exhaust other job
possibilities.” As the trier of fact, the ALJ considered Tichauer’s
conclusions and determined the weight to which they were entitled. See Le
Duc v. Indus. Comm’n, 116 Ariz. 95, 98 (App. 1977). Safelite essentially asks
us to reweigh the evidence, which we will not do. See Salt River Project v.
Indus. Comm’n, 128 Ariz. 541, 544-45 (1981).
CONCLUSION
¶12 The evidentiary record supports the administrative law
judge’s findings. We affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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