Calder v. interstate/zurich

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KELLY CALDER, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

INTERSTATE DISTRIBUTOR CO., Respondent Employer,

ZURICH AMERICAN INSURANCE CO., Respondent Carrier.

No. 1 CA-IC 13-0033
FILED 3-4-2014

Special Action - Industrial Commission
ICA NOS. 20060-900230** and 20061-380717*
CARRIER CLAIM NOS. 2080136381** and 2080137295*

Layna Taylor, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Ely, Bettini, Ulman & Rosenblatt, Phoenix
By Joseph M. Bettini, Ronald Ozer

Toby Zimbalist, Phoenix
By Toby Zimbalist
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.

J O N E S, Judge:

¶1 This is a special action review of an Industrial Commission
of Arizona (ICA) award and decision upon review awarding permanent
partial disability benefits to Kelly Calder (Claimant). Two issues are
presented on appeal:

(1) whether the administrative law judge’s (ALJ) failure to
resolve conflicts in the medical evidence with regard to
Claimant’s work restrictions precluded a finding of suitable
employment; and

(2) whether the job adopted by the ALJ was reasonably
available to Claimant.

Because we are able to ascertain the factual basis for the ALJ’s award and
we find it to be legally sound, we affirm.

JURISDICTION AND STANDARD OF REVIEW
¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2) (2014), 23-951(A) (2014), and
Arizona Rule of Procedure for Special Actions 10. In reviewing ICA’s
findings and awards, 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,

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63 P.3d 298, 301 (App. 2003). 1 We consider the evidence in a 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).

PROCEDURAL AND FACTUAL HISTORY

¶3 On October 5, 2005, Claimant worked as a truck driver for
the respondent employer, Interstate Distributor Company (Interstate). A
vibration in the truck’s steering column caused Claimant to gradually
develop severe hand pain; she was diagnosed with carpal tunnel
syndrome and filed a workers’ compensation claim. On January 24, 2006,
Claimant filed a second workers’ compensation claim for a vibration-
related injury to her lower back. Both claims were denied for benefits by
the respondent carrier, Zurich American Insurance Company (Zurich).
Claimant timely protested the denial of her claims, and the claims were
consolidated for hearing.

¶4 After the initial hearing was held, Zurich accepted both
claims for benefits. Both claims were then eventually closed with
permanent impairments:

1st INJURY: 10-5-05 Applicant sustained bilateral carpal
tunnel and an index finger trigger finger. Applicant
underwent surgery and benefits were terminated effective 5-
7-09 with a 10% permanent impairment of the index finger
bilaterally and 4% permanent impairment of each upper
extremity. Supportive medical maintenance benefits are
being provided.

2nd INJURY: 1-24-06 Applicant sustained a back injury for
which benefits were terminated effective 5-7-09 with a 5%
permanent impairment. Supportive maintenance benefits
are being provided under the management of Dr. Norris.

Applicant lived in Seligman and worked for a company
based out of Tacoma [,] WA at the time of her injury.
Applicant currently resides in Seligman.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶5 The ICA next entered an award for an unscheduled
permanent total disability, finding Claimant had sustained an
unscheduled 5% permanent partial impairment, which resulted in a 100%
reduction in her monthly earning capacity, and entitled her to receive
$1,600.08 per month in permanent disability benefits. The ICA’s
permanent total disability award was based upon its finding that
Claimant’s “place of residence” would preclude her from obtaining any
suitable, reasonably available employment.

¶6 Zurich timely protested the ICA’s award. Claimant, four
physicians, and two labor market experts testified at six subsequent
hearings. Following these hearings, the ALJ entered a consolidated award
in favor of Claimant for unscheduled permanent partial disability benefits
in the amount of $557.39 per month. After Claimant requested
administrative review, the ALJ supplemented her award by specifically
rejecting Claimant’s credibility regarding her subjective physical
limitations, and affirmed. Claimant next brought this appeal.

DISCUSSION

¶7 Claimant asserts the ALJ erred by finding there was suitable
and reasonably available employment within her geographical labor
market. In order to establish a claimant’s residual earning capacity, there
must be evidence of job opportunities which are (1) suitable, i.e., which a
claimant would reasonably be expected to perform considering her
physical capabilities, education, and training; and (2) reasonably available.
Germany v. Indus. Comm’n, 20 Ariz. App. 576, 580, 514 P.2d 747, 751 (1973).

¶8 Ordinarily, the claimant has the burden of proving a loss of
earning capacity (LEC). Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580,
672 P.2d 922, 924 (1983). In that regard, a claimant has an affirmative
burden to establish an inability to return to date-of-injury employment,
and must make a good faith effort to obtain other suitable employment, or
present testimony from a labor market expert to establish residual earning
capacity. See D’Amico v. Indus. Comm’n, 149 Ariz. 264, 266, 717 P.2d 943,
945 (App. 1986). If there is testimony that a good faith effort was made,
but was unsuccessful, 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.

¶9 In this case, Claimant both performed an extended work
search and presented labor market testimony from Nathan Dean. It was
Dean’s opinion that Claimant had a permanent total LEC. In rebuttal,

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Zurich presented labor market testimony from Lawrence Mayer. Relying
upon the recommendations of Paul Guidera, M.D. and Terry E. McLean,
M.D. pertaining to Claimant’s physical condition, Mr. Mayer testified
Claimant was capable of performing full-time sedentary employment.
Mr. Mayer also noted, if he considered the recommendations from Mark
David Mellinger, M.D. and Kyle Norris, M.D., Claimant could only return
to part-time sedentary work.

¶10 Claimant first argues the ALJ could not make a finding of
suitable employment because the ALJ failed to explicitly resolve the
medical conflict regarding Claimant’s work restrictions. Initially, we note
that Claimant did not raise this issue in her request for review to the
administrative law judge. See Spielman v. Indus. Comm’n, 163 Ariz. 493,
496, 788 P.2d 1244, 1247 (App. 1989) (additional findings must be
requested on administrative review for judicial review of sufficiency of the
findings).

¶11 Generally, this court will not consider an issue on appeal
that has not been raised before the ICA. See Norsworthy v. Indus. Comm’n,
24 Ariz. App. 73, 74-75, 535 P.2d 1304, 1305-06 (1975). This rule stems
from the requirement that administrative remedies must be exhausted
before judicial review is sought. See Larson v. Indus. Comm’n, 114 Ariz.
155, 158, 559 P.2d 1070, 1073 (App. 1976). In the absence of a specific
request for review, we limit our appellate review to (1) matters which are
in the record, such as objections to evidence, and (2) the issue which is
fundamental upon review, the sufficiency of the evidence to support the
award. See Stephens v. Indus. Comm’n, 114 Ariz. 92, 94-95, 559 P.2d 212,
214-15 (App. 1977). For that reason, we review the medical evidence to
see if it supports the ALJ’s finding of suitable employment.

¶12 In her award, the ALJ summarized the medical testimony
from Drs. Mellinger, Norris, Guidera, and McLean. Dr. Mellinger, a board
certified orthopedic surgeon with a certificate of added qualification in
hand, wrist, and elbow surgery, treated Claimant’s bilateral hand injuries
beginning in 2006. He performed several surgeries, including bilateral
carpal tunnel and trigger finger releases. Dr. Mellinger continued to
follow Claimant, and he provided her with prescription medications to
control her ongoing hand pain, swelling, and inflammation. He last saw
Claimant on September 20, 2011, and at that time, she had full range of
motion in her hands, no joint effusion or swelling, and normal grip and
motor tone.

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¶13 Dr. Mellinger testified that with regard to Claimant’s hand-
related work restrictions, he agreed with the August 2, 2011 functional
capacity evaluation report (FCE), which read:

CONCLUSION/RECOMENDATIONS

Based on the results of this assessment, Mrs. Calder
[Claimant] does not meet the demands of her job as a truck
driver for finished products. She does not meet the lifting,
carrying, pushing, pulling, stooping, and bending
requirements. She does not meet the sitting, standing, and
walking demands. She also does not meet the manual dexterity
demand of the job.

Based on the results of testing, the following
recommendations are made for future job placement:
. Manual dexterity tasks for short periods of time with ability for
frequent rest breaks.
. Majority of work done between waist and shoulder height
with minimal to rare low level work.
. Ability to change position from sitting to standing
frequently throughout the day; 30 minutes for standing, 60
minutes for sitting.
. Work in the LIGHT-MEDIUM Physical Demands
Category of Work with occasional lifting up to 30 pounds
and frequent lifting of 15 pounds.

¶14 Dr. Guidera, board certified in hand and plastic surgery,
testified regarding his independent medical examinations (IMEs) of
Claimant whom he last saw on July 25, 2011, when she complained of
swelling, pain, and numbness in her hands and fingers. Dr. Guidera
examined Claimant’s hands and found no evidence of residual carpal
tunnel syndrome or trigger fingers. He did detect, however, some
tenderness at the base of her left thumb joint, and obtained x-rays, which
were normal. Dr. Guidera also noted a medical history of fibromyalgia
and depression, which “have been documented in hand surgery literature
as contributing to a patient’s heightened illness awareness. . . .”

¶15 Dr. Guidera opined Claimant’s hand condition was
medically stationary, and did not require hand related work restrictions.
With regard to the FCE, Dr. Guidera testified he disagreed with its
conclusions because it was “bereft of any objective information” and
contained “no objective data.” In conclusion, Dr. Guidera stated that

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Claimant’s hand condition did not restrict her from working eight hours
per day, five days per week.

¶16 Dr. Norris, board certified in physical and pain medicine,
testified he continues to treat the residual symptoms from Claimant’s 2006
back injury. In addition, Dr. Norris stated Claimant had a preexisting
degenerative disc disease with spondylosis and facet arthropathy, which
caused axial and radicular low back pain. 2 Dr. Norris treated Claimant
with a variety of modalities, including nerve blocks, radiofrequency
ablation, physical therapy, and prescription medication. It was Dr.
Norris’s opinion that Claimant’s industrial injury permanently aggravated
her preexisting degenerative back condition. Although Dr. Norris
obtained a surgical consultation with Dr. Hales, Claimant was not a
surgical candidate. In fact, Dr. Hales found Claimant’s pain “seems to be
well out of proportion to what would be expected based on the MRI scan
and examination.”

¶17 With regard to Claimant’s physical limitations, Dr. Norris
testified he is in general agreement with the FCE, although he had not
read the report in its entirety. Specifically, Dr. Norris agreed Claimant
was capable of performing light to medium work, occasionally lifting 30
pounds, and frequently lifting 15 pounds. However, Dr. Norris stated he
was unable to provide an opinion as to whether Claimant could work full
time.

¶18 Dr. McLean, board certified in orthopedic surgery and
fellowship trained in spinal surgery, testified regarding his IMEs of
Claimant’s back. When Dr. McLean last saw Claimant on July 12, 2011,
she complained of low back pain extending up to her mid-back, and
intermittent numbness in her buttocks and thighs. On examination, Dr.
McLean found some limitation in range of motion and tenderness
bilaterally in her lumbosacral spine and sciatic notches. He diagnosed
chronic axial back pain, probably secondary to Claimant’s “lumbar disc
degeneration/facet disease.”

¶19 Dr. McLean opined that Claimant was stationary with a 5%
permanent impairment, and that she could perform full time light duty

2Dr. Norris defined these terms as, “localized to the axial spine, so the
pain . . . is in the back itself. It does not radiate down into the extremities.
The radicular component would describe a radiating pain into the
extremities. . . .”

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work with occasional lifting up to 34 pounds, frequent lifting and carrying
up to 10 pounds, and occasional bending, stooping, squatting, climbing,
pushing, and pulling. In addition, Dr. McLean testified Claimant was able
to work eight hours per day, five days per week, including sitting up to
2.25 hours at a time and standing or walking 30 to 45 minutes at a time.
Dr. McLean observed his recommendations were very similar to those
contained in the FCE, with the exception of the frequent changes in
position.

¶20 In an LEC proceeding, the medical expert’s role is to explain
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). The labor
market expert’s role is to receive medical input from the treating
physicians 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).

¶21 “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). It is the
ALJ’s duty to resolve all conflicts in the evidence and to draw all
warranted inferences. Johnson-Manley Lumber v. Indus. Comm’n, 159 Ariz.
10, 13, 764 P.2d 745, 748 (App. 1988). In doing so, an ALJ is not bound to
accept or reject an expert’s entire opinion, but instead, is free to combine
portions of the expert testimony in a reasonable manner. Fry’s Food Stores
v. Indus. Comm’n, 161 Ariz. 119, 123, 776 P.2d 797, 801 (1989).

¶22 An ALJ is not required to make findings on all issues raised
in a case, as long as the ALJ resolves the ultimate issues. See Cavco Indus.
v. Indus. Comm’n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 (1981). An ALJ’s
award is sufficient when this court can determine the factual basis for the
conclusion and whether it was legally sound. See Post v. Indus. Comm’n,
160 Ariz. 4, 7, 770 P.2d 308, 311 (1989). Furthermore, findings may be
implicit in an award. Pearce Dev. v. Indus. Comm’n, 147 Ariz. 582, 583, 712
P.2d 429, 430 (1985).

¶23 In this case, the ALJ did not make an explicit finding as to
the medical testimony relied upon for Claimant’s work restrictions.
Instead, the ALJ made a detailed review of each of the physician’s
testimony and then resolved the ultimate issue in an LEC proceeding –
what constitutes suitable and reasonably available employment for the
injured worker. In that regard, the ALJ found:

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13. The applicant takes the position, ultimately,
that the applicant is permanently and totally disabled from
work, and that because the applicant was not hired for any
of the positions she applied for which have been posited by
the defendants as showing her earning capacity, those
positions cannot be considered in determining her earning
capacity. As noted by the defendants, none of the doctors
who testified in this matter stated an opinion that the
applicant is permanently and totally disabled from work or
that she could only work part time. The defendants suggest
that the most reasonable result would be to adopt the
opinions of Drs. Guidera and McLean that the applicant can
work full time within the restrictions given by Dr. McLean,
and that employment as a ticket agent or sales office clerk at
the Grand Canyon Railway in Williams is suitable and
reasonably available to the applicant and in a reasonably
accessible labor market. The defendants calculate that
veraging [sic] the rollback wage between the two positions
results in a monthly entitlement of $557.39.
14. The undersigned agrees with the applicant that
the appropriate labor market to evaluate the applicant’s
postinjury earning capacity does not include Farmington,
New Mexico, Kingman, or Flagstaff. The undersigned finds,
considering all the evidence of record and the applicable
provisions of A.R.S. § 23-1044 and applicable case law, that
the appropriate labor market for the applicant extends to
Williams, Arizona, and that full time employment as a ticket
agent or sales office clerk at the Grand Canyon Railway in
Williams is suitable and reasonable [sic] available to the
applicant and therefore accurately reflects her postinjury
earning capacity, resulting in a monthly entitlement of
$557.39.

Based upon these findings as well as the award, we conclude the ALJ
implicitly adopted the work restrictions provided by Drs. Guidera and
McLean.

¶24 Claimant next argues Zurich failed to produce evidence of
reasonably available job opportunities within her area of residence. With
regard to the reasonable availability of employment for purposes of an
LEC, the Arizona Supreme Court requires evidence of the number of job
openings, the number of applicants for those openings, and how the

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claimant’s impairment will affect his ability to compete for those
positions. See Roberts v. Indus. Comm’n, 162 Ariz. 108, 110-11, 781 P.2d 586,
588-89 (1989). “A claimant’s earning capacity must be addressed 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,” i.e., the geographical
labor market. Kelly Servs. v. Indus. Comm’n, 210 Ariz. 16, 18, ¶ 9, 106 P.3d
1031, 1033 (App. 2005) (citing Arizona Workers’ Compensation Handbook, §
7.4.2.4, at 7-24 (Ray J. Davis, et al., eds.; 1992 and Supp. 2013)).

¶25 We addressed more fully the geographical labor market in
Kelly Services:

[T]he more appropriate inquiry for determining
whether a particular labor market (not requiring a change in
residence) is within a claimant’s “area of residence” is
whether a reasonable person in the claimant’s situation
would probably seek employment there. In making such a
determination, a totality of the circumstances approach, in
which all relevant factors are considered, should be used. By
way of example only, relevant considerations in determining
whether a potential job lies within a person’s geographical
labor market area would typically include availability of
transportation, duration of commute, and the length of
workday. . . . It would also include the ability of the person
to make the commute based on his physical condition.

210 Ariz. at 20, ¶ 15, 106 P.3d at 1035 (citations omitted).

¶26 In this case, Claimant’s labor market expert, Nathan Dean,
testified the appropriate geographical labor market for Seligman
(Claimant’s residence) included a surrounding 50-mile radius. Zurich’s
labor market expert, Lawrence Mayer, testified Williams, Arizona, was
42.58 miles from Seligman and the only town within 50 miles of Seligman.
The ALJ adopted this testimony and found Williams within Claimant’s
geographical labor market. Regarding the commute, Dr. McLean testified
Claimant could sit up to 2.25 hours at a time. In addition, Claimant
indicated she possessed a valid driver’s license and was capable of driving
her personal vehicle up to 1.75 to 2 hours at a time before needing a break.

¶27 Only Mr. Mayer, however, provided an opinion regarding
the reasonable availability of employment within Claimant’s geographical

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labor market. 3 He reported:
COMPANY NAME/TEL# CURRENT # OF QUAL. CURRENT ROLLBACK JOB
OPENINGS APPLICANTS WAGE WAGE AVAILABILITY

Grand Canyon Ticket Agent 7 $8.50- $7.50/hr 3+ FT Openings In
Railway/ 9.00/hr. Last 12 months
928-773-1976 (Williams, AZ)
(Operations/
Depot)

....
Pizza Hut/ Assistant 7 $10.50+ $9.50 3 FT Openings
928-635-4343 General in Last 12 Months
Manager (Williams AZ)

¶28 This court has previously recognized the carrier need not
present evidence there is an “open and waiting job for this particular
workman,” because this would force the carrier to become an
“employment agent.” Germany, 20 Ariz. App. at 580, 514 P.2d at 751.
Instead, we recognized that the open labor market or the competitive
labor market is a legal fiction, which courts use to attempt to ascertain the
extent to which a workman’s injuries in combination with attributes such
as education, skills, training, etc., affect his ability to earn a living. Id.
(citing Cramer v. Indus. Comm’n, 19 Ariz. App. 379, 381, 507 P.2d 991, 993
(App. 1973). We find Mr. Mayer’s report and testimony legally sufficient
to establish reasonably available employment within Claimant’s
geographical labor market.

CONCLUSION

¶29 For all of the foregoing reasons, we affirm the award.

:mjt

3For the purposes of this report, a labor market survey is a representative
sampling of work available to the applicant, and not an exhaustive search
of every possible job with every possible employer in the
Kingman/Seligman/Williams/Flagstaff, AZ geographic area.

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