Lockridge v. Am king/special Fund ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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
LEMMIE LOCKRIDGE, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
A.M. KING INDUSTRIES, INC., Respondent Employer,
SPECIAL FUND/NO INSURANCE DIVISION, Respondent Party in
Interest.
No. 1 CA-IC 13-0041
FILED 07-31-2014
Special Action - Industrial Commission
ICA Claim No. 20023-520080
Joseph L. Moore, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Law Office of Richard T. Weissman, PLLC, Mesa
By Richard T. Weissman
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
LOCKRIDGE v. A.M. KING/SPECIAL FUND
Decision of the Court
Lester & Norton, P.C., Phoenix
By Steven C. Lester
Counsel for Respondent Employer
Special Fund Division/No Insurance Section, Phoenix
By Miral A. Sigurani
Counsel for Respondent Party in Interest
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
C A T T A N I, Judge:
¶1 Petitioner Lemmie Lockridge seeks special action review of
an administrative law judge (“ALJ”)’s ruling denying Lockridge’s request
that his Industrial Commission of Arizona (“ICA”) benefits be increased
based on a change in his physical condition and/or his earning capacity
subsequent to the original benefit award. For reasons that follow, we affirm
the ALJ’s ruling.
FACTS AND PROCEDURAL BACKGROUND
¶2 Respondent employer A.M. King Industries, Inc. (“King
Industries”), employed Lockridge as a welder and mechanic. On
November 26, 2002, Lockridge was working on a platform when it
collapsed, causing him to fall 25 to 30 feet. Lockridge sustained a lumbar-
burst fracture and underwent surgery for decompression and stabilization
of his spine. His condition eventually became medically stationary with a
permanent partial impairment. The parties entered into a stipulation that
Lockridge’s industrial injury caused a loss of earning capacity entitling him
to receive $775.72 in monthly permanent partial disability benefits. An ALJ
approved the parties’ stipulation.
¶3 Although the stipulation provided that Lockridge was
capable of performing light duty work for up to thirty hours per week, he
did not look for or return to work. Approximately six years later, however,
Lockridge petitioned for rearrangement to increase the amount of his
award based on a labor market report that concluded that Lockridge
sustained a complete loss of earning capacity and was unemployable. The
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ICA agreed and entered its findings and award increasing Lockridge’s
benefits. The ICA found that, based on a 100% reduction in Lockridge’s
monthly earning capacity, he was entitled to $1,386.63 per month in
permanent partial disability benefits.
¶4 King Industries timely challenged the ICA’s findings and
award and requested a hearing. The ALJ conducted a hearing and
considered testimony from Lockridge, his treating physician, an
independent medical examiner, and two labor market experts. After
weighing and assessing the evidence, the ALJ entered an award denying
the increased benefit. Lockridge timely requested administrative review,
which was summarily denied. Lockridge then filed this special action. This
court has jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(2), 23-951(A), and Arizona Rules of Procedure for Special
Actions 10.1
DISCUSSION
¶5 Lockridge first argues he was entitled to an increased benefit
pursuant to the rearrangement provisions set forth in A.R.S. § 23-1044(F)(1)
because he established a change in physical condition and a corresponding
loss of earning capacity. In reviewing ICA findings and awards, we defer
to the ALJ’s factual findings, but we review questions of law de novo.
Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (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, 41 P.3d
640, 643 (App. 2002).
¶6 Rearrangement and reopening are exceptions to res judicata
and work together to allow a claimant to adjust both his medical treatment
and disability benefits to reflect ongoing changes in his industrially-injured
condition. See Stainless Specialty v. Indus. Comm’n, 144 Ariz. 12, 15–16, 18–
19, 695 P.2d 261, 264–65, 267–68 (1985); see also Modern Indus. v. Indus.
Comm’n, 125 Ariz. 283, 286, 609 P.2d 98, 101 (App. 1980). In the case of lost
earning capacity, § 23-1044(F)(1) specifically allows modification of an
otherwise-final award in the case of certain changed circumstances:
F. For the purposes of subsection C of this section, the
commission, in accordance with the provisions of § 23-1047
when the physical condition of the injured employee becomes
1 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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stationary, shall determine the amount which represents the
reduced monthly earning capacity and upon such
determination make an award of compensation which shall
be subject to change in any of the following events:
1. Upon a showing of a change in the physical condition
of the employee subsequent to such findings and award
arising out of the injury resulting in the reduction or increase
of the employee’s earning capacity.
¶7 A change in condition is measured by “comparing the facts
determined by the [prior] final findings and award with those existing at
the time of the [] petition.” Gallegos v. Indus. Comm’n, 144 Ariz. 1, 5–6, 695
P.2d 250, 254–55 (1985). Expert medical testimony is necessary to establish
the requisite change in physical condition to support rearrangement. See
W. Bonded Prod. v. Indus. Comm’n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App.
1982).
¶8 In this case, the comparison points are the October 20, 2004
award for unscheduled permanent partial disability benefits and the June
2, 2010 petition to rearrange. The 2004 award adopted the parties’
stipulation, which found that Lockridge had an unscheduled permanent
partial impairment and was “capable of working as a retail
clerk/marketing representative, self-service gas station attendant, etc.,
working 30 hours a week and earning $5.15 per hour on a roll-back basis.”
Under the 2004 award, Lockridge was deemed to have a loss of earning
capacity of $1,410.39 per month, and he received permanent partial
disability benefits of $775.72 per month.
¶9 To establish the 2010 change in condition, Lockridge
presented testimony from Robert McKissick, M.D., his treating family
practitioner. Dr. McKissick began treating Lockridge in 2009 for
industrially related chronic pain that required narcotic medication. When
asked about Lockridge’s medical condition in 2004, however, Dr. McKissick
stated that he was unaware of Lockridge’s medical problems, medications,
or work restrictions as of October 20, 2004. Accordingly, he was unable to
state whether there had been any change in Lockridge’s physical condition
subsequent to the 2004 award.
¶10 King Industries presented medical testimony from Irwin
Shapiro, M.D., a board-certified orthopedic surgeon, who had performed
independent medical examinations of Lockridge in August 2004 and
August 2011. Dr. Shapiro testified that Lockridge’s diagnostic studies
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showed no change in his lumbar fusion, and that Lockridge’s objective
physical condition remained unchanged from 2004. Dr. Shaprio stated that
Lockridge had increased subjective complaints of pain, but no objective or
pathologic basis for these complaints. Dr. Shapiro further noted that this
type of nonorganic finding is frequently psychosocial in nature, and he
opined that Lockridge remained capable of light, sedentary employment
for eight hours per day, forty hours per week. Dr. Shaprio stated that his
opinion was based on both Lockridge’s objective physical condition and his
subjective complaints.
¶11 After noting that A.R.S. § 23-1044(F)(1) requires a change in
physical condition as a prerequisite to rearrange, the ALJ correctly rejected
Lockridge’s argument that increased subjective complaints of pain are a
sufficient change to warrant a benefit increase. By its terms, § 23-1044(F)(1)
requires showing “a change in the physical condition of the employee.”
Similarly, increased subjective complaints of pain unaccompanied by
objective physical changes are an insufficient basis to reopen a claim for
additional medical treatment, which further underscores their insufficiency
to establish a basis to modify an ICA award. See A.R.S. § 23-1061(H) (“A
claim shall not be reopened because of increased subjective pain if the pain
is not accompanied by a change in objective physical findings.”). To the
extent Drs. McKissick’s and Shapiro’s opinions conflicted, the ALJ adopted
Dr. Shapiro’s findings. See Perry v. Indus. Comm’n, 112 Ariz. 397, 398, 542
P.2d 1096, 1097 (1975) (when expert medical testimony conflicts, it is the
ALJ’s duty to resolve those conflicts). The ALJ’s conclusion is supported by
the record, and we thus conclude that the ALJ did not err by finding that
Lockridge failed to meet his burden of proof for a benefit modification
under A.R.S. § 23-1044(F)(1).
¶12 Lockridge also argues that he presented a claim under A.R.S.
§ 23-1044(F)(2), which permits a modification of a lost earning capacity
award “[u]pon a showing of a reduction in the earning capacity of the
employee arising out of such injury where there is no change in the
employee’s physical condition, subsequent to the findings and award.” See
also Gallegos, 144 Ariz. at 2, 695 P.2d at 251 (noting that an award
modification is available under § 23-1044(F)(2) when there is a reduction in
earning capacity causally related to the industrial injury that results from
“some external change in circumstances occurring after the commission
issued its final award.”). Although questioning whether Lockridge raised
a claim under this subsection, the ALJ nevertheless addressed the issue.
¶13 Lockridge presented labor market testimony from Nathan
Dean, who reported that Lockridge was unemployable and had a complete
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loss of earning capacity.2 King Industries presented testimony from
vocational consultant Erin Welsh, who testified that sedentary work with
the opportunity to frequently change positions remained available to
Lockridge in the applicable labor market. The ALJ resolved the conflict
between the experts, finding Welsh’s testimony to be more persuasive and
concluding that Lockridge’s claim was not factually supported.
¶14 Considering the evidence in the light most favorable to
sustaining the ALJ’s ruling, we conclude that the ALJ did not err by
rejecting Lockridge’s claim of changed economic circumstances between
2004 and 2010.
CONCLUSION
¶15 For the foregoing reasons, the award is affirmed.
:gsh
2 Dean relied on Lockridge’s receipt of Social Security Disability
Benefits in his report. This court has recognized that a social security
determination may be admissible and relevant for certain purposes in an
ICA proceeding, but “[t]he fact that the claimant, under a different law, is
entitled to disability benefits from the Social Security, has no effect on the
amount of industrial compensation claimant is entitled to draw.” Womack
v. Indus. Comm’n, 3 Ariz. App. 74, 81, 412 P.2d 71, 78 (1966).
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