Davis v. mckelvey/national ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TANYA DAVIS, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
MCKELVEY TRUCKING, Respondent Employer,
NATIONAL INTERSTATE INSURANCE CO, Respondent Carrier.
No. 1 CA-IC 14-0057
FILED 2-19-2015
Special Action - Industrial Commission
ICA Claim No. 20083-520396
Carrier Claim No. 1002 388
Joseph L. Moore, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Tanya Davis, Phoenix
Petitioner Employee
In Propria Persona
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & LaMont, PC, Tucson
By Eric W. Slavin
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.
K E S S L E R, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for no loss of earning
capacity (“LEC”). One issue is presented on appeal: whether the
administrative law judge’s (“ALJ’s”) finding that the petitioner employee
(“claimant”) had no LEC is reasonably supported by the record. Because
we find that the evidence of record reasonably supports the ALJ’s award,
we affirm.
FACTUAL AND PROCEDURAL HISTORY1
¶2 On December 1, 2008, the claimant was employed by the
respondent employer, McKelvey Trucking (“McKelvey”), as an over-the-
road driver. She was injured while adjusting the tandems (rear dual tires)
on her truck’s trailer. The claimant developed tingling in her neck and her
1 Claimant filed an untitled motion seeking to supplement the record with
evidence related to the most recent flare-up from her injury and
documenting her time off work as a result. The records, however, all relate
to an alleged flare-up in 2015, after the hearings and award in this matter.
Thus, we will not consider them as part of this appeal. Records not
considered by the ALJ below are not properly part of the certified record on
appeal before this Court and we will not consider documents outside the
certified record. See, e.g., Wood v. Indus. Comm’n, 126 Ariz. 259, 262, 614 P.2d
340, 343 (App. 1980); Shockey v. Indus. Comm’n, 140 Ariz. 113, 116 n.1, 680
P.2d 823, 826 n.1 (App. 1983). Thus, claimant’s motion to supplement the
record with additional evidence is denied. Nothing in this ruling prevents
the claimant from introducing such records in a later proceeding before the
commission on a petition for rearrangement. See infra ¶ 10.
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DAVIS v. MCKELVEY/NATIONAL
Decision of the Court
left shoulder, arm, and leg. By the following day, she was in a lot of pain
and sought medical treatment. She filed a workers’ compensation claim
which was accepted for benefits.
¶3 Following an independent medical examination (“IME”), the
claimant’s claim was closed with no permanent impairment. She timely
protested, and following ICA hearings for medical testimony, an ALJ
entered an award finding that the claimant’s industrial injury had resulted
in a permanent impairment. Based on the finding of a permanent
impairment, the ICA entered its findings and award for a 32.19% LEC and
awarded the claimant $328.94 per month in unscheduled permanent partial
disability benefits.
¶4 McKelvey and National Interstate Insurance Company
(collectively “respondents”) timely protested the ICA’s award, and after a
hearing, the ALJ entered an award for an unscheduled permanent partial
disability from October 4, 2011 until starting her new job, but no LEC. The
claimant requested administrative review, but the ALJ summarily affirmed
the award. The claimant next brought this appeal. This Court has
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rules of Procedure for
Special Actions 10.2
DISCUSSION
¶5 The claimant argues that her residual industrially-related
symptoms fluctuate, causing her to lose time from work and to have an
LEC. The burden of proving an LEC is on the claimant. See, e.g., Zimmerman
v. Indus. Comm’n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983). In that regard,
it is the claimant’s burden to present sufficient evidence and testimony to
establish her LEC claim. Id. In reviewing findings and awards of the ICA,
we defer to the ALJ’s factual findings but review questions of law de novo.
See Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App.
2003). 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).
¶6 In establishing an LEC, the object is to determine, as nearly as
possible, whether the claimant can sell her services in the open, competitive
2 We cite the current version of applicable statutes and rules because no
revisions material to this decision have since occurred.
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labor market and for how much. Davis v. Indus. Comm’n, 82 Ariz. 173, 175,
309 P.2d 793, 795 (1957). Evidence of a claimant’s post-injury earnings
raises a presumption of post-injury earning capacity, which may be
overcome by evidence that the claimant’s actual earnings do not accurately
reflect her earning capacity. County of Maricopa v. Indus. Comm’n, 145 Ariz.
14, 19, 699 P.2d 389, 394 (App. 1985).
¶7 The claimant testified that she had held a commercial driver’s
license since 1988. She drove buses for the City of Oakland for eight years
before becoming an over-the-road driver. After attending truck driving
school, the claimant drove trucks for a year before being hired by
Greyhound where she drove buses for eight more years. The claimant next
drove trucks for McKelvey until her industrial injury. She testified that
following her injury, her treating physician, Dr. Jackson, advised her not to
return to the heavy lifting required by her work at McKelvey.
¶8 At the time of the ICA hearing, the claimant was working as
a bus driver for the City of Phoenix through its contract with First Transit.
She testified that she was hired at the beginning of December 2013 and
would remain in a probationary period until the beginning of March 2014.
The claimant works full-time, forty hours per week, although she had
missed a couple of days of work when her residual industrial symptoms
flared up. She explained that Dr. Jackson gives her Botox injections every
three months for her industrially-related residuals under her supportive
care award. The claimant testified that the injections provide good relief
although they start to diminish toward the three-month mark and that is
when her symptoms flare up.
¶9 The respondents presented a labor market report from
Richard Prestwood, who stated that new drivers at claimant’s job receive
thirty-six hours of training at a training wage, after which they earn $12.62
per hour or a roll-back wage of $11.39.3 Based on the rolled-back wage, the
claimant’s monthly earning capacity at her job is $1,974.11, which exceeds
her average monthly wage of $1,858.11. For that reason, the claimant did
3 Calculating post-injury earnings requires a “roll back” to date of injury
wage levels in order to obtain an accurate comparison of the claimant’s
average monthly wage before the injury and her earning capacity after the
injury. See Whyte v. Indus. Comm’n, 71 Ariz. 338, 346, 227 P.2d 230, 235
(1951).
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Decision of the Court
not overcome the post-injury earnings presumption and establish an LEC
and entitlement to permanent disability benefits.
¶10 We recognize the claimant’s concern with regard to her
symptomatic fluctuations. If her condition should deteriorate in the future
to the point that she cannot perform the essential functions of the bus driver
job, she may then file a petition for rearrangement. See A.R.S. § 23-1044(F)
(Supp. 2014) (upon a showing of a reduction in earning capacity causally
related to the industrial injury, a claimant may petition to rearrange their
permanent disability benefits).
CONCLUSION
¶11 For the reasons stated, we affirm the ALJ’s award.
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