Ibarra v. Olive garden/lm Ins

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

OLIVE GARDEN RESTAURANT, Respondent Employer,

LIBERTY MUTUAL INSURANCE CORPORATION, Respondent Carrier.

No. 1 CA-IC 20-0005
FILED 10-1-2020

Special Action - Industrial Commission
ICA Claim No. 20162-66085
Carrier Claim No. WC608C68215
The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Snow Carpio & Weekley, PLC, Phoenix
By Erica Rose Gonzalez-Melendez
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
 IBARRA v. OLIVE GARDEN/LM INS
Decision of the Court

Lundmark Barberich LaMont & Slavin, PC, Phoenix
By Lisa M. LaMont
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Petitioner Patricia Ibarra challenges an award issued by the
Industrial Commission of Arizona ("ICA") that found she had a 1.32% loss
of earning capacity after a work-related injury. She alleges error in the
formula used by the ICA and proposes a different formula based on Whyte
v. Indus. Comm'n, 71 Ariz. 338 (1951), which held that earnings in 1949 were
not a reasonable basis for computing lost earning capacity from an injury
that happened in 1942. We are not persuaded that Ibarra provided
adequate evidence to invoke the Whyte comparison. We, therefore, affirm
the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Ibarra has worked for Olive Garden since 2007. She worked
in the kitchen as a pasta cook and line cook for years until she was injured
and diagnosed with work-related bilateral wrist injuries in 2016. After she
had surgery on her right wrist, she was medically released back to work,
restricted to light duty, and was told to avoid forceful gripping. Olive
Garden put her to work as a hostess, which she has continued since 2017.
As a cook, she was making $13.15 per hour. She began earning $13.00 an
hour upon moving to the hostess position in 2017. By the date of the
hearing, she had received two raises and was making $13.70 per hour.

¶3 Ibarra's claim was closed in March 2018, with a 3% permanent
impairment for each wrist. The ICA claims division found that she had no
loss of earning capacity, and Ibarra requested a hearing before an
administrative law judge ("ALJ") to contest that finding.

2
 IBARRA v. OLIVE GARDEN/LM INS
Decision of the Court

¶4 The parties agree that Ibarra's wage at the time of injury was
$13.15 per hour,1 and that her current wage as a hostess is $13.70 per hour.
For purposes of this case, they also agree that she works an average of 30
hours per week. The ALJ heard from Ibarra and two labor market
consultants. Ibarra testified that she still experiences pain in her arms but
continues to work. She speaks Spanish, almost exclusively, and
understands only a little English, which makes it hard for her to work as a
hostess.2 She testified that for much of her time working as a hostess, she
had not performed all of the hostess duties due to her limited English. One
of her primary activities was to roll up silverware in napkins for placement
on tables.

¶5 The testimony of Ibarra's labor market consultant, Nolan
McKelvey, focused on a dispute over the average hours per week that
Ibarra worked as a hostess. After the hearing, Ibarra conceded that she
averaged 30 hours of work per week, making much of McKelvey's
testimony immaterial. McKelvey did not explain why he used the numbers
he used for computing loss of earning capacity. McKelvey's testimony and
written report make clear, however, that he used the 2016 minimum wage
as Ibarra's post-injury wage in computing her loss of earning capacity
because hostess positions start at minimum wage. Based on a generic
minimum wage calculation, McKelvey determined that Ibarra suffered a
lost earning capacity of about 38%, or $646.23 of her $1,692.65 average
monthly wage. Ibarra asserts that it is necessary to use the wages of a
hostess to calculate her loss of earning capacity because work restrictions
prevent her from returning to her prior occupation as a cook.

¶6 Respondents' labor market consultant, Diane Nayhouse,
testified that she calculated a 1.32% loss of earning capacity by comparing
Ibarra's pre-injury hourly wage of $13.15 to the 2016 equivalent of her
current $13.70 hourly wage, which, according to the Consumer Price Index,
was $12.85. Nayhouse did not explain why she used the 2016 equivalent of
Ibarra's current wage.

1 Loss of earning capacity is determined pursuant to A.R.S. § 23-
1044(C) by using average monthly wage to find reduced monthly earning
capacity. An average monthly wage is determined by multiplying an
hourly wage by the number of weekly hours worked on average, then
multiplying by a factor of 4.333. Ibarra's average monthly wage at the time
of her injury was set at $1,692.65.

2 Ibarra testified at the hearing using a Spanish-language interpreter.

3
 IBARRA v. OLIVE GARDEN/LM INS
Decision of the Court

¶7 The ALJ issued a decision in November 2019. She noted the
rebuttable presumption that a worker's current earnings reflect the worker's
earning capacity and found that Ibarra had not rebutted this presumption.
The ALJ further found it was proper to use the "rollback" wage of $12.85
per hour in determining whether there was any lost earning capacity. She
attributed greater weight to Nayhouse's testimony than McKelvey's and
found a 1.32% loss of earning capacity. After a summary affirmance upon
administrative review, Ibarra filed this statutory special action.

DISCUSSION

¶8 In ICA cases, we deferentially review reasonably supported
factual findings but independently review legal conclusions. Warren v.
Indus. Comm'n, 202 Ariz. 10, 12, ¶ 12 (App. 2002). Ibarra has the burden to
prove a loss of earning capacity and, if so, how much. Schuck & Sons Const.
v. Indus. Comm'n, 213 Ariz. 74, 78, ¶ 14 (App. 2006). Post-injury earnings
raise a rebuttable presumption that those earnings are commensurate with
earning capacity. Maness v. Indus. Comm'n, 102 Ariz. 557, 559 (1967); see also
Dye v. Indus. Comm'n, 23 Ariz. App. 68, 71 (1975) (Jacobsen, J., specially
concurring) ("[T]he best evidence of earning capacity is [post-injury
earnings]."). A party may rebut the presumption by a showing that post-
injury earnings do not reflect actual earning capacity. See Shroyer v. Indus.
Comm'n, 98 Ariz. 388, 392 (1965) (noting that an "increase in general wage
levels," claimant's increased "maturity or training," pay based on "sympathy
to claimant," and "the temporary and unpredictable character of post-injury
earnings" may establish that post-injury earnings are unreliable) (quoting 2
Larson's Workmen's Compensation Law § 57.21 (1952)). We agree with the
ALJ that Ibarra has not rebutted the presumption.

¶9 Ibarra first argues that the presumption in Maness should not
apply to this case because her job as a hostess does not require her to
perform "all of the functions of a hostess." She implies that her current
position and wages are based on sympathy or something unrelated to
earning capacity because she does not perform all the typical duties of a
hostess. The ALJ rejected that argument, and we agree. At the time of the
hearing, Ibarra had been working as a hostess for two years and had
received two raises. She presented no evidence that her employment and
hourly wage as a hostess was based on anything other than merit and a
long-standing employment relationship.

¶10 The only dispute is about the method of calculating the loss
of earning capacity. The parties agree that the starting point for
determining Ibarra's loss of earning capacity is her pre-injury average

4
 IBARRA v. OLIVE GARDEN/LM INS
Decision of the Court

monthly wage as a cook. The ALJ determined loss by comparing the pre-
injury average monthly wage with Ibarra's current wage, rolled back to a
2016 level to remove any effect of inflation. Ibarra claims that the starting
wage for a hostess in 2016, the year of her injury, should be compared to
her pre-injury average monthly wage, because that is the type of
comparison that the Arizona Supreme Court made in Whyte. This is not a
fair reading of Whyte.

¶11 In Whyte, a steelworker was severely injured in 1942, resulting
in the loss of one leg and substantial loss of use of the other. 71 Ariz. at 340.
After hospitalization and convalescence, including the fitting of a
prosthesis, he was reemployed by the same company as a "timekeeper" due
to his physical limitations. Id. His wage as a timekeeper from 1947 to 1949
was almost as much as he had been paid as a steelworker in 1942. Id. at 341.
In 1949, the ICA held a hearing to determine the injured steelworker's loss
of earning capacity. Id. The ICA used the difference between his 1942 and
1949 average monthly wages to find a small loss of earning capacity from
his injuries. Id. The Arizona Supreme Court rejected that calculation
because it did not account for and remove the effects of economic
conditions that took place after World War II. Id. at 343-44; see also Warren,
202 Ariz. at 13-14, ¶ 21 ("The supreme court decided Whyte in 1951, during
the postwar business boom but when memories of the great depression
remained fresh. The accepted interpretation of Whyte has been that post-
injury earnings must be discounted for inflation since the date of injury.")
(citation omitted). The Court ruled that the legislature did not intend that
economic factors such as booms or depressions must be included in the
measure for loss of earning capacity. Whyte, 71 Ariz. at 345. The legislature
instead intended to provide a "yardstick" of fixed length by which to
measure loss. Id. at 344. Thus, the Court compared the employee's pre-
injury, 1942 average monthly wage as a steelworker with the average
monthly wage of a timekeeper at the steel company in 1942. Id. at 346. The
Court reasoned that, upon being injured, the employee could no longer
perform the duties of a steelworker but could earn a wage as a timekeeper.
Id. at 345-46. The Court cautioned, however, that the ruling was limited in
its application:

This formula, however, applies only in cases where the
increase or decrease in wages is due solely to a change in
economic conditions that occurs between the date the injury
takes place and the date the injury becomes stationary, as in
this case. It has no application where the difference in wages
during that period is due to a change in the physical condition
of the injured employee directly and proximately resulting

5
 IBARRA v. OLIVE GARDEN/LM INS
Decision of the Court

from said injury or due to the peculiar or special efficiency of
such employee.

71 Ariz. at 346-47. The rule established in Whyte has been called the "equal
measure" rule. Reavis v. Indus. Comm'n, 196 Ariz. 280, 283, ¶ 16 (App. 1999).

¶12 Ibarra's argument fails because she has not provided the
evidence needed to make the Whyte comparison. The Whyte court ruled
that the wage to be compared to the pre-injury average monthly wage
should be the average wage of the company's timekeepers in 1942. 71 Ariz.
at 346. The equivalent here would be the average wage of Olive Garden
hostesses in 2016. Ibarra only provided evidence of the starting wage for a
new hostess and did not provide evidence necessary to make the Whyte
comparison.

¶13 Further, Ibarra produced no evidence to rebut the
presumption that her current earnings reflect her earning capacity. Maness,
102 Ariz. at 559. Ibarra was not treated as an entry-level employee when
she was hired as a hostess in 2017. She had worked for the restaurant for
ten years, and there is no evidence that her employer would have treated
her as an entry-level, minimum-wage employee in 2016. Thus, there is
reasonable evidence to support the ALJ's decision, and Ibarra's argument
that the ALJ should have used the 2016 minimum wage is without merit.

CONCLUSION

¶14 Ibarra has not shown error in the award. We affirm.

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

6