Palladino v. fairmont/am Zurich

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PATRICIA PALLADINO, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
FAIRMONT SCOTTSDALE PRINCESS, Respondent Employer,
AMERICAN ZURICH INSURANCE CO., Respondent Carrier.
No. 1 CA-IC 15-0011
FILED 2-16-2016
Special Action – Industrial Commission
ICA Claim No. 20132-240135
Carrier Claim No. 2080291760
Robert F. Retzer, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Law Office of Stephen L. Weiss, Phoenix
By Stephen L. Weiss
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Industrial Commission of Arizona
Lester, Norton & Brozina, P.C., Phoenix
By Rachel P. Brozina, Steven C. Lester, Christopher S. Norton
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.
D O W N I E, Judge:
¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision on review for an unscheduled
permanent partial disability. One issue is presented: whether the
administrative law judge (“ALJ”) erred by basing the award on full-time
employment. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Patricia Palladino injured her back while employed as an
aesthetician by the respondent employer, Fairmont Scottsdale Princess
(“Fairmont”). She filed a workers’ compensation claim that was accepted
for benefits. The ICA entered a notice of average monthly wage in the
amount of $2,810.44. Palladino received conservative medical treatment,
and her condition became stationary with ongoing physical limitations.
¶3 The respondent carrier, American Zurich Insurance
Company (“American”), closed Palladino’s claim with an unscheduled
permanent partial impairment and a supportive care award. The ICA
then issued its findings and award for unscheduled permanent partial
disability benefits. It found Palladino had sustained an unscheduled 16%
permanent partial impairment, which resulted in a 31.36% loss of earning
capacity and entitled her to $484.76 per month in disability benefits.
Palladino timely protested the findings and award and requested a
hearing.
¶4 The ALJ heard testimony from Palladino, her supervisor,
Fairmont’s human resources manager, and two labor market experts. The
ALJ thereafter entered an award for an unscheduled permanent partial
disability. Palladino requested review, but the ALJ affirmed the award.
2
PALLADINO v. FAIRMONT/AM ZURICH
Decision of the Court
Palladino then timely sought this Court’s review. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(2),
23-951(A), and Arizona Rule of Procedure for Special Actions 10.
DISCUSSION
¶5 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 (App. 2003). We consider the evidence in
the light most favorable to upholding the award. Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶6 Palladino contends the ALJ erred by basing her post-injury
earning capacity on full-time employment. The ALJ found:
In reference to the number of hours the Applicant can work,
testimony from Brennan Evans, the Manager Director of
Well and Being Spa at Defendant Employer was that the
Applicant was a full time employee. Further, there are no
hourly restrictions per week on the Applicant’s ability to
work. Therefore, the undersigned finds that jobs as a
Receptionist for 40 hours a week at $9.67 per hour are both
suitable and available to the Applicant. The undersigned
finds [that] Elias v. Industrial Commission . . . is
distinguishable from this case and that in Elias the Applicant
was a Nurse who only sought part-time work which is not
the case here. . . .
¶7 The burden of proving a loss of earning capacity (“LEC”) is
on the claimant. See, e.g., Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580
(1983). A claimant must establish an inability to return to date-of-injury
employment and either make a good faith effort to obtain other suitable
employment or present testimony from a labor market expert to establish
her residual earning capacity. See D’Amico v. Indus. Comm’n, 149 Ariz. 264,
266 (App. 1986). In determining residual earning capacity, the ALJ must
consider
any previous disability, the occupational history of the
injured employee, the nature and extent of the physical
disability, the type of work the injured employee is able to
perform subsequent to the injury, any wages received for
work performed subsequent to the injury and the age of the
employee at the time of injury.
3
PALLADINO v. FAIRMONT/AM ZURICH
Decision of the Court
See A.R.S. § 23-1044(D).
¶8 Fairmont made reasonable accommodations to adapt
Palladino’s job duties to physical limitations resulting from the industrial
injury. Palladino attempted to return to her job as an aesthetician but was
physically unable to perform necessary duties. Palladino testified she
averaged 30 hours of work per week at Fairmont’s spa. However, Brennan
Evans, managing director of the spa, testified Palladino was a full-time
aesthetician. He explained:
A. [Evans] We . . . bid our work schedule as we need to to
meet the needs of our clientele. And when we have a bid,
we bid that based off of seniority, so the most senior person
gets selection of shifts first, and we put together what is their
work schedule from those bidded shifts.
Q. [By Ms. Brozina] Tell me what goes into determining
somebody’s seniority status.
A. Seniority is considered to be the hire date into the
position that they are currently in.
Q. And what was Ms. Palladino’s seniority status when she
was employed with you?
A. I believe she was number three.
Q. So number three out of roughly 13?
A. Correct.
Q. Could you tell us how you determine which employee
performs what service or gets whatever customer is
scheduled for the day?
A. . . . [W]e basically book based off of seniority on the most
senior next available person that does that service.
...
Q. So what do your employees do if they’re on the premises
but they don’t have a service booked?
4
PALLADINO v. FAIRMONT/AM ZURICH
Decision of the Court
A. They are required to be readily available in case we have
a walk-in that decides to book a service. We have a break
room for them to stay in where we have a TV. They can read
books, they can relax with iPads and be at the ready.
¶9 Fairmont also presented labor market testimony from Lisa
Clapp. Clapp testified that a full-time aesthetician at Fairmont typically
worked seven-and-a-half hour shifts, five days a week. Depending on the
season and spa bookings, shifts could be longer or shorter.
¶10 The testimony by Clapp and Evans supports the ALJ’s
conclusion that Palladino was a full-time employee, notwithstanding
variances in her hours. Palladino had no work restrictions at the time of
her industrial injury and had high seniority for spa bookings. The
evidence further established that Palladino remains physically capable of
working full-time within her industrially related physical limitations. See,
e.g., Hoffman v. Brophy, 61 Ariz. 307, 314 (1944) (claimant has a duty to
mitigate her damages by minimizing any loss of earnings).
CONCLUSION
¶11 For the foregoing reasons, we affirm the award.
:ama
5