Chenoweth v. R. behmer/copperpoint

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JERROLD CHENOWETH, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
R. BEHMER ROOFING, Respondent Employer,
COPPERPOINT WESTERN INSURANCE CO., Respondent Carrier,
INDUSTRIAL COMMISSION OF ARIZONA SPECIAL FUND,
Respondent Party in Interest.
No. 1 CA-IC 19-0040
FILED 4-1-2021
Special Action - Industrial Commission
ICA Claim No. 20152-940233
Carrier Claim No. 15W01948
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD SET ASIDE
COUNSEL
Joel F. Friedman PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini, Afshan Peimani
Counsel for Respondent, ICA; ICA Special Fund, Respondent Party in Interest
CHENOWETH v. R. BEHMER/COPPERPOINT
Decision of the Court
CopperPoint Western Insurance Company Legal Services, Phoenix
By Chiko F. Swiney
Counsel for Respondent, Employer and Carrier
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Jerrold Chenoweth challenges an Industrial Commission of
Arizona (“ICA”) award that determined his lost earning capacity (“LEC”).
Because the award lacks sufficient findings, we set it aside.
BACKGROUND
¶2 Chenoweth worked as a roofer for over 30 years. He owned
and operated a roofing business for 16 years, where his job duties, among
other things, included accepting payments, providing receipts, and
handling customer contact. Then he worked for R. Behmer Roofing, Inc.
(“Behmer”) from 2007 to 2017. In October 2015, Chenoweth fell from a roof
and injured his right heel and leg, eventually requiring a total ankle
replacement. The ICA calculated his lost earning capacity at 51.53% of his
average monthly wage for a 15-month period starting in September 2017.
Chenoweth timely protested, asserting he had a total LEC during the
relevant period. Over the course of several months, an administrative law
judge (“ALJ”) conducted evidentiary hearings.
¶3 Chenoweth testified about his background, injuries, and
efforts to find suitable employment. He dropped out of school after eighth
grade, but later obtained a GED certificate. He lacks computer skills and
needs to elevate his ankle frequently. Chenoweth said he talked to people
he knew about potential jobs, and his wife created a profile for him on
various job application websites, including: monster.com,
careerbuilder.com, and indeed.com. He also contacted companies that
were listed in a report prepared by the insurer’s labor market consultant,
which included Pink Jeep Tours, Fast Payday Loans, Sedona Off Road
Adventures, Ace Cash Express, and Arizona Shuttle. Chenoweth explained
that none of these efforts led to him finding suitable employment.
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Decision of the Court
¶4 Two orthopedic physicians, Dr. Stephen Knecht and Dr. Peter
Mitchell, testified to work restrictions that would be necessary given
Chenoweth’s health condition. Both doctors agreed he could not return to
work as a roofer. Knecht, the surgeon who performed Chenoweth’s ankle
surgeries, testified that Chenoweth can no longer work on ladders, roofs,
and uneven or inclined surfaces. Knecht assumed Chenoweth could drive
up to 30 minutes at a time. Mitchell, who performed an independent
medical examination on behalf of the insurer, testified that in an eight-hour
day Chenoweth could stand two to three hours at most, with breaks.
Essentially, Mitchell recommended sedentary work but believed that
Chenoweth could work full time with no limitation on his ability to drive.
¶5 Labor market consultants David Janus (for Chenoweth) and
Lisa Clapp (for the insurer) prepared reports and testified about suitable
jobs that were available during the period at issue, taking into consideration
the doctors’ restrictions and Chenoweth’s experience and abilities. Janus
opined that Chenoweth had a total loss of earning capacity for the relevant
period. Janus reasoned that Chenoweth’s lack of marketable computer
skills significantly impaired his job prospects, even for sedentary jobs.
Janus suggested that the only job open to Chenoweth—given his medical
restrictions—was a fast-food cashier.
¶6 Clapp testified about several suitable jobs for Chenoweth,
including working for a staffing company that filled positions at a local
bottling company to put labels on bottles, inspect the labeling of bottles, or
place bottles in a crate. With those jobs as the basis for her opinion, she
testified Chenoweth’s LEC was 48.89% during the relevant period. Clapp
also opined he could work a part-time position as a ticket taker at a movie
theater, which would have resulted in a 75.6% reduction in earning
capacity.
¶7 The ALJ found Chenoweth’s testimony not credible and
concluded Mitchell’s opinion was more probably correct and well-founded
than Knecht’s. The ALJ also gave more weight to Clapp’s analysis. The ALJ
determined Chenoweth was able to work in various sedentary employment
positions and thus had a 48.89% LEC for the 15-month period at issue. After
denying Chenoweth’s request for administrative review, the ALJ
summarily affirmed her award. Chenoweth then appealed to this court.
DISCUSSION
¶8 In reviewing the ICA’s award, we defer to the ALJ’s factual
findings but review legal questions de novo. Young v. Indus. Comm’n, 204
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Ariz. 267, 270, ¶ 14 (App. 2003). An ALJ must make findings on all material
issues necessary to resolve the case. Post v. Indus. Comm’n, 160 Ariz. 4, 7–9
(1989); see also Aguirre v. Indus. Comm’n, 247 Ariz. 75, 75, 77, ¶¶ 1, 13 (2019).
And “[a]lthough [a] lack of findings on a particular issue does not
invalidate an award per se,” we will set aside the award “if we cannot
determine the factual basis of [the] conclusion or whether it was legally
sound.” Post, 160 Ariz. at 7. As explained by our supreme court,
administrative law judges should explicitly state their
resolution of conflicting evidence on material and important
issues, find the ultimate facts, and set forth their application
of law to those facts. We do not require any particular form,
nor even great detail. However, we must know how the judge
reached his or her conclusion.
Id. at 8–9 (emphasis added). Chenoweth argues the ALJ’s lack of findings
precludes proper appellate review of the award. He contends the ALJ failed
to make specific findings about his credibility, conflicts within the medical
experts’ testimony, and the availability and suitability of various
employment positions.
¶9 To calculate an injured worker’s LEC, the goal is to
“determine as near as possible whether in a competitive labor market the
subject in his injured condition can probably sell his services and for how
much.” Davis v. Indus. Comm’n, 82 Ariz. 173, 175 (1957).
Determining the amount of an injured worker’s LEC, if any,
is governed in part by A.R.S. § 23-1044, which requires
consideration of, ‘among other things, to 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 after the injury,
any wages received for work performed after the injury and
the age of the employee at the time of injury.’
Smith v. Indus. Comm’n, 247 Ariz. 470, 474, ¶ 13 (App. 2019).
¶10 Initially, the burden of proving an LEC is on the claimant to
establish he is unable to return to date-of-injury employment, and either (1)
show he made a good faith effort to obtain other suitable employment, or
(2) have a labor market consultant testify to establish his earning capacity.
Landon v. Indus. Comm’n, 240 Ariz. 21, 26–27, ¶ 18 (App. 2016). If the
claimant meets the initial burden of proof, the burden shifts to the insurer
to prove “there is employment reasonably available which the claimant
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could reasonably be expected to perform, considering his physical
capabilities, education and training.” Germany v. Indus. Comm’n, 20 Ariz.
App. 576, 580 (1973).
¶11 Here, the ALJ stated Chenoweth had the initial burden to
prove that he could not find suitable employment. But the ALJ made no
findings about Chenoweth’s efforts to find employment and whether he
met that burden. As a result, the ALJ made no mention of whether the
burden shifted to the employer or whether the employer satisfied its burden
to “show the availability of suitable employment.” See Roach v. Indus.
Comm’n, 137 Ariz. 510, 511 (1983); Smith, 247 Ariz. at 473, ¶ 10 (“By failing
to address whether [the claimant] met the initial burden of proof, the ALJ
overlooked the principle that even if a claimant does not have injury-related
work restrictions, the claimant may still receive an LEC award.”) (citing
A.R.S. § 23-1044(G)(2)).
¶12 In Smith, we noted the ALJ failed to make any finding on
whether the claimant met his initial burden of proving an LEC, but we did
not set aside the award on that basis. 247 Ariz. at 473–75, ¶¶ 10–11, 21.
Unlike this case, however, nothing in Smith indicates the claimant
challenged the award for insufficient findings. We also concluded that
regardless of the lack of a finding on burden shifting, the evidence showed
the claimant could not perform the work required to return to her date-of-
injury employment, and she made a good faith effort to obtain other
suitable employment. Id. at 473, ¶ 11. Thus, Smith does not excuse an ALJ
from the obligation to make findings on all material issues.
¶13 Although the ALJ found that Chenoweth’s testimony was
“not credible,” she did not explain how she reached that finding or point to
any portion of his testimony showing it was “self-contradictory,
inconsistent with other evidence, or directly impeached.” See Holding v.
Indus. Comm’n, 139 Ariz. 548, 551 (App. 1984) (explaining the ALJ’s role in
determining witness credibility). Nor is there any indication the ALJ
considered the various factors outlined in A.R.S. § 23-1044(D) and (G)
relating to whether Chenoweth could find suitable employment that was
reasonably available. See Landon, 240 Ariz. at 29, ¶ 24; see also Kamman v.
Indus. Comm’n, 2 CA-IC 2018-0005, 2018 WL 6033516, at *3 (Ariz. Ct. App.
Nov. 16, 2018) (“Although several of the factors in § 23-1044(D) are
mentioned in the ALJ’s summary of the evidence, there is no indication in
the award that she considered them when making her determination;
indeed, it does not even contain a reference to § 23-1044(D).”).
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Decision of the Court
¶14 The ALJ also found Clapp’s analysis regarding various
positions with the staffing company and Chenoweth’s suitability for those
positions is “more probably correct and well-founded” than the analysis
Janus offered, and that Chenoweth “is capable of working in various
sedentary positions.” But the ALJ failed to reconcile Clapp’s testimony
with the testimony of the medical experts, and specifically, Dr. Mitchell,
who testified that Chenoweth could stand for a total of two to three hours
a day in an eight-hour period with breaks. And both doctors agreed it
would be reasonable for Chenoweth to need to elevate his leg periodically.
Clapp admitted that if the ALJ found that Chenoweth needed to elevate his
leg periodically, the jobs Clapp recommended would “at least be more
complicated.”
¶15 Clapp also acknowledged she did not ask the potential
employers if there are productivity requirements for at least two of the
positions, and the record is silent on whether the various positions she
discussed would allow for the accommodations Chenoweth needed,
including elevating his leg periodically. But the law requires material
factors to be explicitly communicated to the surveyed employers before the
results of such a survey can be given any weight. See Zimmerman v. Indus.
Comm’n, 137 Ariz. 578, 582 (App. 1983) (noting that in determining
suitability it must be shown with specificity that the physical requirements
of the employment and that “abstractions are not sufficient”) (quotation
and citation omitted). The ALJ did not address Chenoweth’s ability to work
in Clapp’s recommended jobs in light of his uncontroverted work
restrictions.
¶16 The ALJ also failed to address whether the jobs Clapp
identified were reasonably available, and more specifically, during the
relevant time period on which the LEC was based. Clapp testified that the
staffing company positions, which the ALJ relied on, had two or three
openings per year and six or seven people with experience applied. But
“[t]he number of openings alone fails to tell us anything about whether a
job is ‘reasonably available.’” Smith, 247 Ariz. at 475, ¶ 16 (citation omitted).
¶17 Without these findings, we are left to speculate whether the
ALJ properly applied the law in reaching her ultimate conclusion on
Chenoweth’s LEC. See Post, 160 Ariz. at 7 (declining to “speculate that the
[ALJ] made ‘the conclusion’ that no causal relationship existed” between a
new condition and the original injury). Nor will we presume that the ALJ’s
general findings on credibility of the witnesses satisfy the level of specificity
outlined by our supreme court. See Douglas Auto & Equip. v. Indus. Comm’n.,
202 Ariz. 345, 347, ¶ 9 (2002) (“The findings must be specific, not only to
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Decision of the Court
encourage [ALJs] to consider their conclusions carefully, but also to permit
meaningful judicial review.”). Because we cannot conduct a proper review
of the award, it must be set aside. See id.; Landon, 240 Ariz. at 29, ¶¶ 24–26
(setting aside LEC award in part because the ALJ made no findings as to
whether Landon met his burden of showing why he was unable to return
to his date-of-injury employment or whether he made a good faith effort to
obtain other suitable employment). Thus, we need not address
Chenoweth’s argument that the ALJ should not have accepted Clapp’s
December 2018 labor market report based on untimely disclosure.
CONCLUSION
¶18 The award is set aside.
AMY M. WOOD • Clerk of the Court
FILED: AA
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