Osman v. tungland/scf

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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

HAIDAR A. OSMAN, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

THE TUNGLAND CORPORATION, Respondent Employer

SCF ARIZONA, Respondent Carrier.

No. 1 CA-IC 13-0043
FILED 3-18-2014

Special Action - Industrial Commission
ICA NO. 20100-290128
Carrier Claim No. 0920100

Layna Taylor, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Fendon Law Office, P.C., Phoenix
By Janell Youtsay
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

SCF Arizona, Phoenix
By Chiko F. Swiney
Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Jon W. Thompson joined. Judge Peter B. Swann dissented.

G O U L D Judge:

¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision upon review for scheduled
disability benefits. One issue is presented on appeal: whether the
administrative law judge (“ALJ”) erred by finding that the petitioner
employee’s (“claimant’s”) preexisting diabetes did not constitute an
earning capacity disability at the time he sustained his September 9, 2009
industrial injury. Because we find that the claimant failed to meet his
burden of proving an existing earning capacity disability, we affirm the
award.

I. JURISDICTION AND STANDARD OF REVIEW

¶2 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 Rule of Procedure for Special Actions 10 (2009).1 In reviewing
findings and awards of the ICA, 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, 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).

1 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.

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II. PROCEDURAL AND FACTUAL HISTORY

¶3 On September 9, 2009, the claimant worked as a caregiver in
a group home for the respondent employer, Tungland Corporation
(“Tungland”). On that date, he struck his left foot on a piece of furniture
while going to assist a resident and sustained a laceration to his small toe.
The laceration became infected and due to the claimant’s Type 1 diabetes
and preexisting peripheral vascular disease, he ultimately required a
below knee amputation of his left leg.

¶4 The claimant filed a workers’ compensation claim, which
was denied for benefits, and he timely requested an ICA hearing.
Following three ICA hearings, an ALJ found his claim compensable. The
respondent carrier, SCF Arizona (“SCF”), then closed the claimant’s claim
with a scheduled permanent impairment. The claimant timely protested
and asserted that his claim should have been closed with an unscheduled
permanent impairment because of his preexisting diabetes.

¶5 The ICA held three hearings for testimony from the claimant
and two physicians. Following the hearings, the ALJ entered an award for
scheduled permanent partial disability benefits. She found that the
claimant had failed to prove that his preexisting diabetes constituted an
earning capacity disability at the time of his September 2009 industrial
injury, which would allow his 2009 injury to be unscheduled. The ALJ
summarily affirmed her Award on administrative review, and the
claimant brought this appeal.

III. DISCUSSION

¶6 The claimant argues that his preexisting diabetes constituted
an earning capacity disability at the time of his September 9, 2009
industrial injury, and therefore, his scheduled left leg injury should have
been unscheduled. SCF responds that the ALJ correctly concluded that
the claimant failed to present sufficient evidence of an existing earning
capacity disability at the time of the September 2009 injury. Arizona
courts have long recognized that when a claimant has multiple
impairments, those impairments may result in a greater total disability
than the sum of the individual disabilities. See Ossic v. Verde Central
Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935) .

¶7 Arizona Revised Statutes § 23-1044(E) determines when a
scheduled injury will be unscheduled:

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In case there is a previous disability, as the loss of one eye,
one hand, one foot or otherwise, the percentage of disability
for a subsequent injury shall be determined by computing
the percentage of the entire disability and deducting
therefrom the percentage of the previous disability as it
existed at the time of the subsequent injury.

¶8 The Arizona Supreme Court has interpreted this statute to
require that a scheduled injury be unscheduled if at the time of the injury,
the claimant suffered from a previous impairment that affected his
earning capacity. Alsbrooks v. Indus. Comm’n, 118 Ariz. 480, 483, 578 P.2d
159, 162 (1978).

. . . We do not believe that any physical impairment, the result of a
prior non-industrial accident, is a ’previous disability’ for the
purposes of Paragraph E unless there is some evidence, no matter
how slight, that it is also an earning capacity disability. To hold
that after a non-industrial injury, any physical impairment
will convert a second scheduled injury into an unscheduled
injury, would, in effect, do completely away with all
scheduled injury awards since it is a rare person indeed who
does not have some previous physical impairment as a result
of some prior injury.

Id. at 483, 578 P.2d at 162 (emphasis added).

¶9 A claimant is not entitled to any presumption of disability
where his prior injury was neither work-related nor within the schedule.
See Wyckoff v. Indus. Comm’n, 169 Ariz. 430, 434, 819 P.2d 1016, 1020 (App.
1991) (stating that a work-related scheduled prior injury is irrebuttably
presumed to be disabling, and a non work-related scheduled injury is
rebuttably presumed to be disabling).

¶10 Moreover, following Alsbrooks, we discussed the standard
for establishing a loss of earning capacity in Lewis v. Industrial. Commission, 126 Ariz. 266, 269-70, 614 P.2d 347, 350-51 (App. 1980). In Lewis, we held
that petitioner’s preexisting arthritis condition constituted an
unscheduled, non work-related injury. Lewis, 126 Ariz. at 269, 614 P.2d at
350. However, we concluded that the petitioner failed to present
“reasonable evidence” showing that his arthritic condition had resulted in
a loss of earning capacity, where (1) claimant merely established, through
his own testimony and the testimony of his physician, that his arthritic
condition resulted in an occupational change from “heavy work” to

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“lighter work,” and (2) “the record was devoid of evidence of wages
either prior to or subsequent to the occupational change.” Id. at 270, at
351. Compare Borsh v. Indus. Comm’n, 127 Ariz. 303, 307, 620 P.2d 218, 222
(1980) (stating that the ALJ should consider that the claimant was forced
to quit two jobs and was denied another because of his impairment as
evidence of loss of earning capacity).

¶11 Claimant argues that he met his burden of proving a pre-
existing earning capacity disability by presenting medical evidence of his
severe diabetic condition and testifying regarding his occupational
history. The ALJ is the sole judge of witness credibility, and it is her duty
to resolve all conflicts in the evidence and to draw all warranted
inferences. Malinski v. Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489
(1968). In this case, the ALJ’s dispositive finding states in pertinent part:

[T]he facts in Alsbrooks are distinguishable from the
evidence in this case. Here, the applicant provided no
evidence whatsoever of his earning capacity prior to the
injury, either in the form of tax returns, business records, or
testimony from a labor market consultant, or any
combination of the above. The court in Alsbrooks found that
permanent disability, as opposed to permanent impairment,
is a legal question and not a medical one; therefore,
testimony from medical witnesses cannot . . . carry the
applicant’s burden of proof on the issue of permanent
disability, which involves a determination of loss of earning
capacity. The record is silent on the applicant’s earning
capacity prior to this injury, and the applicant has therefore
failed to meet his burden of proof to establish that he is
entitled to a determination of unscheduled benefits.

¶12 Here, claimant was required to prove, by reasonable
evidence, that his preexisting diabetic condition had caused him to suffer
a loss of earning capacity disability2 at the time he sustained the 2009

2 In Borsh v. Industrial Commission, 127 Ariz. 303, 620 P.2d 218 (1980),
the Arizona Supreme Court reiterated that earning capacity disability
“refers to injuries which result in impairment of earning power
generally,” and does not mean disablement to perform the particular
work petitioner was doing at the time of his injury. Id. at 307, 620 P.2d at
222, citing Savich v. Indus. Comm’n, 39 Ariz. 266, 270, 5 P.2d 779, 780 (1931).

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work injury to his toe. The determination of permanent impairment is a
medical question and requires medical testimony, while the determination
of permanent disability is a legal question. Alsbrooks, 118 Ariz. at 482, 578
P.2d at 161, citing Smith v. Indus. Comm’n, 113 Ariz. 304, 305-06 n.1, 552
P.2d 1198, 1199-1200 n.1 (1976).

¶13 We have approved the admission of testimony from labor
market experts who receive medical information from treating physicians
regarding a claimant’s physical capabilities and limitations and match
them to the requirements of specific jobs in the open labor market. See
Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550, 556, 744 P.2d 462, 468
(App. 1987). However, we have rejected opinion testimony from
physicians regarding the abilities of an injured worker to function in a
specific job because physicians generally lack the necessary expertise in
regard to the job requirements. Davis v. Indus. Comm’n, 16 Ariz. App. 535,
537-38, 494 P.2d 735, 737-38 (1972). Such opinions are only allowed where
the physician has special knowledge of “the physical and mental
requirements of a claimant’s vocation.” Hobbs v. Indus. Comm’n, 20 Ariz.
App. 437, 439, 513 P.2d 975, 977 (1973).

¶14 The evidence in this case established that the claimant was
diagnosed with diabetes in 1994 while living in Saudi Arabia and working
in an administrative position. He moved to New York in 2005 and
operated a wholesale business until May 2007, when the business was
robbed. After the robbery, the claimant opened a convenience store which
he operated until 2008. In 2008, the claimant began working at
Tungland’s group care home as a caregiver and driver. He worked full
time and earned $8.00 per hour. He continued to work there until his 2009
industrial injury resulted in a below knee amputation.

¶15 The claimant’s only prior diabetic complication resulted
from a mosquito bite in 2007, which formed a diabetic ulcer on his left
foot. He was treated from August through November 2007, in Syracuse,
New York, and some of these medical records were placed in evidence.
Our review of the medical records reveals that recommendations for
functional limitations were made on August 23, 2007, and November 19,
2007, in conjunction with the treatment of the claimant’s diabetic foot
ulcer. These records respectively reported the claimant’s prognosis as
“Good” and “Fair.” The claimant testified that these physicians gave him
physical limitations for standing, bending, and carrying, and

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recommended that he apply for Social Security Disability benefits.3 Both
reports diagnosed diabetes and morbid obesity, but neither indicated that
the functional limitations were intended to extend beyond the treatment
of the “healing” foot ulcer.

¶16 Our review of the record confirms the ALJ’s conclusion that
it is devoid of financial records or labor market evidence that would
demonstrate the claimant had an earning capacity disability on September
9, 2009. The only testimony elicited concerning the effect of the claimant’s
diabetes on his earning capacity was given by the claimant and his
examining physician, and no evidence of wages before the claimant’s
occupation change was offered. As a result, claimant failed to meet his
burden of showing a loss of earning capacity. Lewis, 126 Ariz. at 269-70,
614 P.2d at 350-51.

IV. Conclusion

¶17 For all of the foregoing reasons, we find that the claimant
failed to meet his burden of proof to unschedule his 2009 injury. We
affirm the ALJ’s award.

3 The record does not contain information with regard to whether
the claimant applied for or received these benefits.

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Swann, J., dissenting

S W A N N, J., dissenting:

¶18 I respectfully dissent.

¶19 Our Supreme Court held in Alsbrooks v. Indus. Comm’n, 118
Ariz. 480, 578 P.2d 159 (1978), that a claimant must present “some
evidence, no matter how slight” to demonstrate that a prior physical
impairment is also a lack of earning capacity. The majority concludes that
claimant had not presented sufficient evidence to prove his loss of earning
capacity. As I read Alsbrooks and the procedural history of this case, the
question properly before the ALJ was not whether claimant had proven
his loss of earning capacity but whether he had presented sufficient
evidence to meet the extremely minimal threshold showing that Alsbrooks
requires.

¶20 In this case, claimant presented evidence of the severity of
his diabetic condition and the medical impairments that resulted from a
mosquito bite in 2007. He also presented evidence of his work history,
which gives rise, at a minimum, to an inference that his earning capacity
had decreased by virtue of his fragile medical state. And though it may
not have been admissible to prove the extent of his loss of earning
capacity, claimant presented medical testimony from an independent
medical examination report that his obesity and diabetes “significantly
limited his earning capacity.” No Arizona authority holds that a medical
expert is not qualified to opine as to the fact of a general loss of earning
capacity in the case of a severely ill individual. At this stage of the
proceedings, nothing more should have been required. The evidence
could have been viewed as more or less compelling by different fact
finders, but it was “some evidence, no matter how slight.”

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Swann, J., dissenting

¶21 The transcript of the proceedings makes clear that the
purpose of the hearings, in the ALJ’s mind, was not to quantify loss of
earning capacity. Such an exercise would require expert testimony, and it
makes sense that claimants should not generally be required to retain
labor experts until a hearing is scheduled that will require such testimony.
Because I view the evidence on the record as sufficient to meet the
Alsbrooks showing, I would remand for further evidentiary proceedings.

:mjt

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