Jani king/liberty v. Rios

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JANI KING OF PHOENIX, Petitioner Employer,

LIBERTY MUTUAL INSURANCE COMPANY, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

GILDARDO RIOS, Respondent Employee.

No. 1 CA-IC 18-0074
FILED 11-7-2019

Special Action – Industrial Commission

ICA Claim No. 20131-830010
Carrier Claim No. WC608-A34965
Layna Taylor, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Lundmark Barberich La Mont & Slavin PC, Phoenix
By Lisa M La Mont, Danielle S Vukonich
Counsel for Petitioners Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Gaetano J Testini
Counsel for Respondent
Law Offices of Robert E Wisniewski, Phoenix
By Robert E Wisniewski
Counsel for Respondent Employee

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) Award providing claimant Gildardo Rios a monthly benefit
of $663.29 for a psychiatric impairment attributable to an industrial injury.
Employer Jani King of Phoenix and insurance carrier Liberty Mutual
Insurance Company argue the Award should be set aside because it is
based on “a theory of the evidence that is unsupported by any rational
interpretation of the facts.” Applying a stipulation by the parties, however,
the Award is supported by sufficient evidence and is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Rios is a franchise holder of Jani-King International, Inc.,
operating as Jani King of Phoenix, an office-cleaning business. In 2012, he
was injured when his car was hit from behind while he was driving
between cleaning jobs. Having had a prior worker’s compensation claim,
he petitioned the ICA, and his claim was reopened. The 2012 industrial
injury was Rios’ third accident since 1998. The second accident, which
occurred in 2007, was also a work-related car accident that resulted in a
back injury. He had back surgery for that injury and was rated with a 15
percent permanent impairment. In the 2012 incident, Rios suffered a further
back injury. As a result of that injury, his physicians diagnosed him with a
depressive disorder, and he received treatment for depression. In 2015, the
2012 claim was closed with a five percent whole person permanent
psychiatric impairment and no loss of earning capacity.

2
 JANI KING v. RIOS
Decision of the Court

¶3 This special action concerns Rios’ claim for benefits stemming
from lost earning capacity as a result of the 2012 injury. The administrative
law judge (ALJ) heard testimony from Rios and two psychiatric experts
regarding how Rios’ mental impairment affects his employment.

¶4 Rios testified about his condition at work after the accident.
He generally testified he experiences a great deal of psychological pressure
from the running of the business, has recruited his wife and daughter to
help him with the physical part of the work and is not very motivated
concerning the company. He continues to have back pain that limits his
ability to do the physical aspects of the work. He also testified that he feels
“like I’m not the same person who can develop the jobs in the same manner
as before.”

¶5 Psychiatrist Gary Prince, M.D., has been treating Rios for his
mental health condition (“major depression, recurrent, with psychotic
features”) since 2012. He testified he has never been asked to recommend
work restrictions for Rios, instead deferring to the physicians who were
treating Rios’ back condition. He was not asked by either party during the
hearing whether he would recommend work restrictions for Rios and, if so,
what they would be.

¶6 Dr. Prince testified Rios had restrictions in what he was able
to do at work as a result of the psychiatric condition causally related to the
2012 injury:

Q. Let me then ask you something, perhaps
in a hypothetical sense. Mr. Rios tells us,
testified here that he has some diminished
functionality, that he has problems in
concentration, he has problems in staying on
top of things with the stress.

Are those components of his major
depressive recurrent condition with the
psychotic features?

A. Yes. Yes. I think they are part and parcel
of the ongoing depressive experience, and
would impair his functioning at work to a
certain extent.

3
 JANI KING v. RIOS
Decision of the Court

Q. We all recognize he had a prior
psychiatric problem that was at least somewhat
dormant, correct?

A. Yes.

Q. If he tells us that he can’t stay on task, he
is distracted at times, he has difficulties
concentrating and going out seeing clients, and
things of that nature, and building up the janitor
work that he told us he does, do you feel that
those are limitations that you would attribute to
that major depression recurrent psychotic
features?

A. Yes. I think it all fits in under that label of
major depressive disorder that he suffers from.

Q. And you attribute, at least the recurrence
of that, to the industrial episode of 8/24/12 and
the sequela of that?

A. Yes. I believe so.

Dr. Prince confirmed his opinions were to a reasonable degree of medical
probability.

¶7 Psychiatrist Dr. Joel Parker, M.D., who conducted an
independent medical examination of Rios in 2015 and who reviewed
records in 2018, testified that Rios does not have any work restrictions
related to his psychiatric condition.

¶8 At the end of the hearing, the parties entered into (and the
ALJ accepted) the following stipulation:

[I]f [the ALJ] determine[s] there aren’t any work
restrictions attributable from a psychiatric
standpoint as a result of the industrial injury,
[then there would be] no loss [of earning
capacity].

If, however, [the ALJ] find[s] that he does have
work restrictions attributable to the injury, [Rios

4
 JANI KING v. RIOS
Decision of the Court

would be entitled to a monthly benefit of
$663.29].

In the Award, after summarizing the evidence received, the ALJ made the
following statements (with legal citations omitted):

8. The parties stipulated, and it is found,
that if the applicant is found to have no work
restrictions related to the industrial injury based
on the medical evidence, then he has no loss of
earning capacity; but if he does have such
restrictions, the applicant has a loss of earning
capacity . . . .

9. Any conflict in the medical evidence and
questions of witness credibility must be
resolved by the administrative law judge.

10. Based on the applicant’s credible
testimony and the resolution of any conflict in
the medical evidence in favor of the opinions of
Dr. Prince, it is found that the applicant does
have work restrictions attributable to the injury
...

The ALJ awarded Rios disability benefits of $663.29 per month and made
no substantive changes to the Award on review.

¶9 This court has jurisdiction over the timely request for review
by Jani King and Liberty Mutual (Petitioners) pursuant to Arizona Revised
Statutes (A.R.S.) sections 12–120.21(A)(2) and 23–951(A) (2019), and
Arizona Rules of Procedure for Special Actions 10.1

DISCUSSION

¶10 Petitioners argue the ALJ erred by concluding that Rios had
“work restrictions from a psychiatric standpoint” because the evidence did
not support that conclusion, most notably because the expert witnesses did
not state or suggest any work restrictions attributable to the psychiatric
condition. Rios argues that the record supports the Award because it is
sufficient to show a loss of earning capacity. He relies on the favorable

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

5
 JANI KING v. RIOS
Decision of the Court

credibility findings given by the ALJ to his testimony and on the resolution
of any conflicts in the medical evidence in favor of Dr. Prince.

¶11 In reviewing findings and awards of the ICA, this court defers
to the ALJ’s factual findings, but reviews questions of law de novo. Young
v. Indus. Comm’n, 204 Ariz. 267, 270 ¶ 14 (App. 2003). This court considers
“the evidence in the light most favorable to upholding the award.” Danial
v. Indus. Comm’n, 246 Ariz. 81, 83 ¶ 11 (App. 2019).

¶12 The stipulation by the parties substantially defines the basis
for the Award and the resolution of the arguments here. Rather than
deciding whether there had been loss of earning capacity, which would
include consideration of multiple factors like those listed in A.R.S. § 23-
1044(D), the stipulation reframed the issue as providing Rios would be
entitled to a monthly benefit of $663.29 if the ALJ “find[s] that he does have
work restrictions attributable to the injury.” Petitioners argue that Rios was
required (but failed) to show that a doctor “specifically placed any
particular work restrictions on Mr. Rios from a psychiatric standpoint.” But
that is not what the stipulation required.

¶13 The stipulation, instead, provides Rios is entitled to the
specified monthly benefit if, after the industrial injury, he had any
restrictions in his work abilities compared to his work abilities before the
industrial injury. It is undisputed Dr. Prince opined, to a reasonable degree
of medical certainty, that Rios’ diminished functionality as a part of his
major depressive recurrent condition with psychotic features “would
impair his functioning at work to a certain extent.” Indeed, Petitioners
concede that Rios’ symptoms “would impair his functioning at work to an
extent.” Dr. Prince also attributed recurrence of work limitations as a result
of the behavioral health issues to the 2012 industrial injury.

¶14 It is this functional impairment interfering with Rios’ ability
to work as a result of the industrial injury that, under the stipulation,
resulted in his entitlement to the $663.29 monthly benefit. It is this
functional impairment that also prompted the ALJ, after assessing
credibility, to conclude that she was “resolving any conflict in the medical
evidence” in favor of Dr. Prince.

¶15 If the parties had not entered into the stipulation, the analysis
would be different. And if the stipulation had different terms (such as
requiring that the work restrictions be imposed by a medical expert, as
opposed to being evident as a result of the industrial injury), the analysis

6
 JANI KING v. RIOS
Decision of the Court

also would be different. But the task before the ALJ was to apply the terms
of the parties’ stipulation as written to the facts presented.

CONCLUSION

¶16 Given the terms of the stipulation and viewing the evidence
in the light most favorable to upholding the Award, sufficient evidence
supports the ALJ’s findings. Accordingly, the Award is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

7