Carrillo v. Mesa unified/york ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BEATRIZ L. CARRILLO,
Petitioner,
v.
THE INDUSTRIAL COMMISSION OF
ARIZONA,
Respondent,
MESA UNIFIED SCHOOL DISTRICT,
Respondent Employer,
YORK RISK SERVICES GROUP,
Respondent Carrier.
No. 1 CA-IC 15-0039
FILED 4-28-2016
Special Action - Industrial Commission
ICA Claim No. 20062-890864
INSCA No. 2006,890864
The Honorable Suzanne Scheiner Marwil, Administrative Law Judge
AFFIRMED
COUNSEL
Beatriz L. Carrillo, Mesa
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
Jardine, Baker, Hickman & Houston, Phoenix
By K. Casey Kurth
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona ("ICA") award and decision of no loss of earning capacity. Beatriz
L. Carrillo argues that the administrative law judge ("ALJ") lacked sufficient
evidence to find that her injury resulted in no loss of earning capacity. For
the following reasons, we affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 Carrillo suffered a shoulder injury on September 28, 2006,
while working as a custodian for respondent employer, Mesa Unified
School District ("Mesa").1 Carrillo received treatment for the injury, was
awarded a one percent general physical functional disability and was
released for work with no restrictions. Soon after, Carrillo returned to work
as a custodian, performing substantially the same duties.
¶3 In 2011, Carrillo filed a petition to reopen her claim due to
resurgent shoulder pain. Mesa contested the petition, and after a hearing,
the ALJ reopened the claim. Carrillo was granted medical benefits and
temporary disability benefits. Carrillo saw two orthopedic surgeons; Dr.
Stuart Kozinn treated her shoulder, and Dr. David Bailie conducted two
independent medical exams. Following Carrillo's release from care on
November 28, 2012, Mesa petitioned the ICA for a determination of benefits
1 When reviewing an ICA award, we construe the evidence in the light
most favorable to upholding the award. See Lovitch v. Indus. Comm'n, 202
Ariz. 102, 105, ¶ 16 (App. 2002).
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to establish her loss of earning capacity. The ALJ heard testimony from
Carrillo, Kozinn and Bailie, and two labor-market consultants, Richard
Prestwood and Lawrence Mayer.
¶4 At the conclusion of Kozinn's treatment of Carrillo on
December 26, 2012, he rated her "with a 20 percent permanent impairment
of the right upper extremity." He testified Carrillo could "return to light
duty work as tolerated," adding that she likely would "have symptoms with
overhead lifting and she should try to find something in a more sedentary
job or something that did not involve increased use of the upper
extremities." Bailie disagreed, opining that Carrillo "can return to work
without restrictions," and that the impairment Kozinn identified "is not
based on anything specific and is not supported by objective evidence."
¶5 Mayer prepared a Loss of Earning Capacity Analysis Report,
which stated Carrillo was capable of work as a PC assembler because of her
work experience, competence in English, and because assembly is
sedentary work within her restrictions. Mayer's assumptions regarding
Carrillo's work history and English competence were based on a deposition
she gave in 2013. In the deposition, Carrillo testified she had worked on an
assembly line at two aerospace parts companies, the first for ten years, the
second for eight, and that she could read and understand a newspaper.
Mayer stated he also considered Bailie and Kozinn's medical findings when
determining that Carrillo could work as a full-time assembler. Mayer
identified ten full-time assembler jobs for which he said Carrillo would be
qualified that were available in the Phoenix area. Mayer stated that
compensation for assembly work is higher than Carrillo received at the time
of her injury, and as a result she had suffered no loss of earning capacity.
¶6 Prestwood challenged Mayer's conclusions, asserting Mayer
overstated Carrillo's fluency in English and her experience as an
assembly/soldering worker. Prestwood interviewed Carrillo in person and
reviewed her medical records. According to Prestwood's report, Carrillo is
"functionally illiterate in the English language" and possesses no significant
transferrable job skills. He stated that, contrary to Mayer's report, Carrillo
had not worked continuously for 18 years as an assembler, but only
intermittently, working in total only eight years during her time as an
assembler. Prestwood asserted Carrillo "would only be qualified for very
entry-level unskilled assembly jobs through temporary employment
agencies." Prestwood found that given Carrillo's restrictions, the only work
available to her would be either as a ticket taker in a parking garage or as a
minimum-wage sandwich maker. After calculating her loss of earning
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capacity, Prestwood estimated a monthly entitlement between $439.59 and
$529.11.
¶7 The ALJ reviewed the evidence and found that Carrillo is
capable of work as an assembler at a higher rate of pay than before her
injury, and as a result, the industrial injury resulted in no loss of earning
capacity. Upon Carrillo's request for review, the ALJ reconsidered the
record and upheld the award. This special action followed.
¶8 We have jurisdiction pursuant to Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(2) (2016) and 23-951(A) (2016) and Arizona
Rule of Procedure for Special Actions 10.2
DISCUSSION
¶9 When reviewing an ICA award, 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). 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 (App. 2002).
¶10 A claimant is entitled to compensation if an industrial injury
causes permanent partial disability. A.R.S. § 23-1044(C) (2016). Damages
for a loss of earning capacity resulting from a permanent partial disability
are calculated based on the difference between the claimant's earnings
before the injury and "the amount which represents the employee's reduced
monthly earning capacity resulting from the disability." A.R.S. § 23-
1044(C). It is the claimant's burden to establish a loss of earning capacity.
Zimmerman v. Indus. Comm'n, 137 Ariz. 578, 580 (1983). "The claimant can
meet this burden by presenting evidence of [her] inability to return to [her]
date-of-injury employment and by making a good faith effort to obtain
other suitable employment or by presenting testimony from a labor market
expert to establish [her] residual earning capacity." Avila v. Indus. Comm'n,
219 Ariz. 56, 59, ¶ 14 (App. 2008).
¶11 In her decision, the ALJ gave due consideration to the
evidence presented by both parties. The ALJ considered conflicting
testimony by the physicians, Kozinn and Bailie. Although they disagreed
about whether Carrillo has any permanent disability, neither testified
Carrillo is entirely unable to work, and ultimately, the ALJ granted
significant weight to Kozinn's opinion. The two labor-market experts,
2 Absent material revision after the relevant date, we cite a statute's
current version.
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Mayer and Prestwood, disagreed about Carrillo's work prospects, given her
medical history and experience. Mayer's opinion, based on Carrillo's
testimony and medical records, was that Carrillo could work as an
assembler. Mayer testified that assembly is sedentary work within
Carrillo's medical restrictions and would be available to her based on her
18 years of experience. Prestwood testified assembly work is beyond
Carrillo's medical restrictions and that she lacks sufficient experience and
English literacy for such a position. The ALJ ultimately accepted Mayer's
opinion, finding Carrillo is sufficiently experienced to find work as an
assembler, and assembly is work within the medical restrictions Kozinn
established.
¶12 An appellate court may disturb an ALJ's factual findings only
when they cannot be supported by any reasonable theory of the evidence.
Perry v. Indus. Comm'n, 112 Ariz. 397, 398-99 (1975). The evidence before
the ALJ was sufficient to support a finding that Carrillo is qualified and
medically able to work as an assembler, and that such employment is
reasonably available in Phoenix. For that reason, there was sufficient
evidence to uphold the ALJ's decision that Carrillo suffered no
compensable loss of earnings.
¶13 Carrillo makes several arguments relating to another
industrial injury she suffered in 2011.3 The 2011 injury was resolved by
agreement and is not before us. Accordingly, we will not address her
arguments regarding the closed case.
¶14 Carrillo also makes several arguments concerning the
conditions of her employment, her prior lawyer's alleged misconduct and
alleged collusion between the parties. These issues are not relevant to relief
available by special action review of an ICA decision, and we decline to
consider them.
¶15 Carrillo cites a Social Security disability award in her favor as
evidence she was disabled at the time of the hearing. Carrillo's Social
Security disability award was not entered in evidence before the ALJ, and
it was only mentioned in passing during Carrillo's testimony. It is not
possible for the ALJ to weigh evidence not before her, and we will not
consider the Social Security award on appeal.
3 ICA Claim # 200112-560058.
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CONCLUSION
¶16 For the foregoing reasons, we affirm the award.
:ama
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