Cullins v. Sequel ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DONNA L. CULLINS, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
SEQUEL YOUTH AND FAMILY, Respondent Employer,
PMA c/o GALLAGHER BASSETT SERVICES, Respondent Carrier.
No. 1 CA-IC 15-0032
FILED 6-9-2016
Special Action – Industrial Commission
ICA Claim No. 20130-500189
Carrier Claim No. 011975-079287-WC-01
J. Matthew Powell, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Joel F. Friedman, PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Lundmark, Barberich, LaMont & Slavin, PC, Phoenix
By R. Todd Lundmark
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
N O R R I S, Judge:
¶1 In this special action from an Industrial Commission of
Arizona (“ICA”) award and decision upon review, Petitioner Donna L.
Cullins argues the administrative law judge (“ALJ”) should not have
adopted the testimony of a labor market expert retained by the Respondent
Employer, Sequel Youth and Family, and the Respondent Carrier, PMA c/o
Gallagher Bassett Services (collectively, “Respondents”), in finding she had
sustained a loss of earning capacity that entitled her to $148.09 in temporary
partial disability benefits. Cullins also argues the ALJ committed
“reversible error” when he found she was “not a credible or reliable
witness.” Reviewing the ALJ’s award under the governing standards of
review, we disagree with both arguments and affirm. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003) (in reviewing
findings and awards of the ICA, appellate court defers to ALJ’s factual
findings, but reviews questions of law de novo); Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002) (appellate court
considers evidence in a light most favorable to upholding ALJ’s award).
FACTS AND PROCEDURAL BACKGROUND
¶2 On February 12, 2013, while working as a behavioral health
paraprofessional for the Respondent Employer, Cullins injured her right
ankle. She filed a workers’ compensation claim, which the Respondent
Carrier accepted for benefits. After the Respondent Employer became
unable to accommodate Cullins’s work restrictions, the Respondent Carrier
began to pay Cullins temporary disability benefits, effective April 15, 2013,
based on her pre-injury average monthly wage of $1,782. See generally Ariz.
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Rev. Stat. (“A.R.S.”) § 23-1044(A) (2015). In May 2014, the Respondent
Carrier reduced Cullins’s temporary disability benefits to $148.09 per
month based on a March 18, 2014 labor market report prepared by Lisa A.
Clapp, a vocational consultant retained by the Respondent Carrier. Based
on her research, Clapp concluded that suitable and available employment
existed for Cullins post-injury and she could reasonably be expected to earn
$1,559.88 per month.
¶3 Cullins timely protested the reduction. After conducting
evidentiary hearings for the testimony of Cullins and Clapp, the ALJ found
Cullins was not a “credible or reliable witness,” but that Clapp’s testimony
was “credible and . . . consistent with the applicable facts and the medical
restrictions imposed by” Cullins’s treating physician, Stephen Knecht, M.D.
Accordingly, the ALJ concluded the Respondent Carrier had “correctly
reduced” Cullins’s temporary partial disability benefits. Cullins timely
requested administrative review, but the ALJ summarily affirmed the
award.
DISCUSSION
¶4 Cullins first argues the ALJ should not have adopted Clapp’s
labor market testimony that “suitable employment” was available because
Clapp did not ask any of the potential employers she surveyed whether
they would allow Cullins to elevate her right leg as necessary to
accommodate Cullins’s work restrictions (“the elevation restriction”).
Although the record reflects Clapp did not ask any of the employers she
surveyed whether they would accommodate the elevation restriction,
Clapp’s testimony nevertheless established the availability of suitable
employment in the relevant labor market.
¶5 In establishing loss of earning capacity, the object is to
determine, as nearly as possible, whether the claimant can sell his or her
services in the open labor market and for how much. 1 Davis v. Indus.
1The claimant bears the burden of proving loss of earning
capacity. See, e.g., Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580, 672 P.2d
922, 924 (1983). Accordingly, the claimant must establish he or she is unable
to return to date-of-injury employment and show he or she made a good-
faith effort to obtain other suitable employment or present testimony from
a labor market expert that establishes his or her residual earning capacity.
See D’Amico v. Indus. Comm’n, 149 Ariz. 264, 266, 717 P.2d 943, 945 (App.
1986). If the claimant presents evidence he or she made a good-faith effort
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Comm’n, 82 Ariz. 173, 175, 309 P.2d 793, 795 (1957). Further, in making this
analysis, the job opportunities must be “suitable, that is, which the claimant
would reasonably be expected to perform considering his physical
capabilities, age, education, training, and prior work experience.” Kelly
Services v. Indus. Comm’n, 210 Ariz. 16, 18, ¶ 9, 106 P.3d 1031, 1033 (App.
2005). In a loss of earning capacity proceeding, the medical expert’s role is
to delimit the claimant’s anatomical or functional impairments. See, e.g.,
Adkins v. Indus. Comm’n, 95 Ariz. 239, 243, 389 P.2d 118, 120 (1964).
Consistent with that role, in June 2014, Dr. Knecht released Cullins to
“Regular Job with Temporary Limitations: No company driving, sedentary
desk work. Must be able to elevate right lower extremity as needed for pain
or swelling. No lifting or carrying. No walking or standing more than 10
minutes per hour over an 8 hour day.”
¶6 The labor market expert’s role is to receive medical input from
the treating physician regarding the claimant’s physical capabilities and to
match them to the 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).
¶7 Consistent with that role, Clapp testified she had been
retained to evaluate Cullins’s earning capacity. She explained that based on
information from Cullins’s treating physician, she understood Cullins was
restricted to “desk work only,” which she interpreted as being “consistent
with sedentary work that does not involve a lot of standing and walking,
primarily, seated employment.” Clapp testified that suitable work
(receptionist, front desk clerk, and customer service representative
positions) consistent with the “desk work only” restriction and Cullins’s
educational and vocational background was available in the relevant labor
market (Prescott, Prescott Valley, and Dewey) for a person living where
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.
Here, Cullins presented ample evidence she could not return
to her date-of-injury work. She also testified that because the pain in her
ankle severely limited her ability to drive, she had limited her job search to
work she could perform at home using her computer. Although the ALJ
did not explicitly find Cullins had failed to meet her burden of showing she
had made a good-faith effort to obtain other suitable employment, the ALJ
implicitly made such a finding given his finding she was “not credible or
reliable.” See infra ¶¶ 13-14.
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Cullins lived (Cordes Lakes). Clapp also testified that the employers she
had surveyed had indicated that they would give Cullins “equal
consideration.”
¶8 As Cullins correctly points out, when Clapp surveyed the
employers identified in her report, she had not been aware of the elevation
restriction and had not asked them whether they would accommodate that
restriction.2 Accordingly, Clapp agreed the elevation restriction “would
likely” eliminate the front desk and customer service representative
positions as suitable jobs for Cullins. But, Clapp reaffirmed the suitability
of the receptionist positions, testifying, “I do think that all three of the
receptionist positions could accommodate a need to elevate.”3
¶9 Based on the totality of Clapp’s testimony and her labor
market report, which the ALJ also received into evidence, the ALJ
reasonably found that even discounting the “hotel job” and the “more
distant jobs”—a reference to the customer service positions described by
Clapp in her report—“there were still enough reasonably available and
compatible jobs in the Prescott/Prescott Valley market to support” Clapp’s
conclusions and benefit calculations.
¶10 Cullins also argues the ALJ should not have adopted Clapp’s
labor market testimony because Clapp failed to establish that suitable
employment was reasonably available to Cullins given the cost and
distance of commuting to several of the potential jobs Clapp had identified
in her labor market report. We reject this argument.
¶11 In determining earning capacity, not only must the job
opportunities be suitable for the claimant, as discussed above, but the job
opportunities must be reasonably available. Kelly Services, 210 Ariz. at 18, ¶
9, 106 P.3d at 1033. “In determining reasonable availability, a claimant’s
2As noted, in June 2014 Dr. Knecht released Cullins to work,
subject to certain restrictions including the elevation restriction. See supra
¶ 4. Clapp evaluated Cullins’s earning capacity in March 2014. Before
March 2014, Dr. Knecht’s reports had simply described Cullins’s work
status as “desk work only.”
3Clappalso testified that when she surveyed the employers,
she had not known that Dr. Knecht had also restricted Cullins to “[n]o
walking or standing more than 10 minutes per hour over an 8 hour day.”
But, Clapp explained that this restriction was “very consistent with desk
work.”
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earning capacity must be assessed with reference to his ‘area of residence,’
which includes the area where the employee lived and worked at the time
of the industrial injury and any area to which the employee relocated
thereafter.” Id. (quoting Arizona Workers’ Compensation Handbook §
7.4.2.4, at 7-24 (Ray J. Davis et al. eds., 1992 and Supp. 2004)). Further,
whether a particular labor market is within a claimant’s area of residence is
measured by whether a “reasonable person in the claimant’s situation
would probably seek employment there.” Id. at 20, ¶ 15, 106 P.3d at 1035.
¶12 As noted, Clapp testified that the relevant labor market
included Prescott, Prescott Valley, and Dewey. Cullins testified she had
worked for her date-of-injury employer in both Prescott Valley and Dewey.
Accordingly, under the foregoing authorities, based on the receptionist
positions—which were located in Prescott or Prescott Valley—Clapp
assessed Cullins’s earning capacity within Cullins’s area of residence.
Thus, neither Clapp nor the ALJ was required to assess the cost and distance
of commuting to the other positions. See Ihle v. Indus. Comm’n, 14 Ariz. App.
463, 465, 484 P.2d 232, 234 (1971).
¶13 Finally, Cullins argues the ALJ “committed reversible error”
by finding her “not credible or reliable” when all of the other evidence
substantiated her testimony. We reject this argument for two reasons. First,
the ALJ “is the sole judge of witness credibility.” Holding v. Indus. Comm’n,
139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). Second, an ALJ may reject
a claimant’s testimony if the ALJ finds it is inconsistent with other
evidence—which was the case here.
¶14 Cullins testified the pain in her right ankle made it difficult if
not impossible for her to drive to Prescott or Prescott Valley and that is why
she had limited her job search to work she could perform on-line from her
home. Yet, Dr. Knecht had not restricted Cullins from driving to work;
instead he had restricted Cullins from “company driving,” which was
significantly different from driving to and from work, as Cullins explained
when she described the “company driving” she had done for the
Respondent Employer before her injury: “Driving the guys to doctors’
appointments, doing shopping, taking them out to, like, the mall. Different
excursions. Taking them to buy cigarettes. Stuff like that.” And, Cullins
acknowledged that even post-injury, she regularly drove to Prescott Valley
to shop for groceries and for doctors’ appointments for herself and her
family. Given the totality of the evidence before the ALJ, we cannot say the
ALJ “committed error” in finding Cullins not credible or reliable.
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¶15 For the foregoing reasons, we affirm the ALJ’s award.
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