Paramo v. Industrial Com'n of Arizona

918 P.2d 1093, 186 Ariz. 75, 218 Ariz. Adv. Rep. 3, 1996 Ariz. App. LEXIS 118
CourtCourt of Appeals of Arizona
DecidedJune 4, 1996
Docket1 CA-IC 95-0008
StatusPublished
Cited by5 cases

This text of 918 P.2d 1093 (Paramo v. Industrial Com'n of Arizona) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paramo v. Industrial Com'n of Arizona, 918 P.2d 1093, 186 Ariz. 75, 218 Ariz. Adv. Rep. 3, 1996 Ariz. App. LEXIS 118 (Ark. Ct. App. 1996).

Opinion

OPINION

PATTERSON, Presiding Judge.

In this special action review of an Industrial Commission decision, the petitioner-employee (“claimant”) argues that the award by the Administrative Law Judge (“ALJ”) was not supported by reasonable evidence. Specifically, he argues that the job of lettuce taper was not suitable and was not reasonably available to him. For the following reasons, we find that the job was suitable and reasonably available and affirm the award.

I. FACTS AND PROCEDURAL HISTORY

The claimant was employed by the respondent employer, Salyer American Fresh (“Sal-yer”), as a field laborer. In order to work twelve months a year, the claimant traveled between Yuma, Arizona, and Salinas, California, according to the lettuce season. On February 16, 1993, the claimant suffered an industrial injury to his lower back while lifting a lettuce box. A compensation claim was accepted and the State Compensation Fund (“Fund”) issued a notice of average monthly wage in the amount of $1743.45 per month based on twelve months per year of steady employment. The claim was later closed with a 7% unscheduled permanent partial impairment.

The Industrial Commission entered an award for an unscheduled permanent partial disability and a loss of earning capacity of 57.75%. This award assumed that the claimant was able to obtain light janitorial or maintenance work 40 hours per week at a minimum wage of $4.20 per hour. The Fund requested a hearing, and several hearings were held. Testimony was presented by the claimant, his treating physician and two labor market experts. The claimant also presented evidence that after the injury, he returned to work with Salyer as a lettuce taper. The claimant further testified that he quit the lettuce taper position after six days because it required physical activity that exceeded the limitations imposed by the industrial injury. After considering the evidence and testimony, the ALJ concluded that:

7. [t]he preponderance of credible evidence establishes that the applicant could perform the duties of a lettuce taper, a job which is both suitable and available and [the claimant] has not sustained a loss of earning capacity as a result of the subject industrial injury.

II. DISCUSSION

The claimant asserts that the ALJ erred in his determination because the job of lettuce taper is seasonal employment which is available only part of the year in Yuma, Arizona, and because it requires physical activity in excess of his treating physician’s physical limitations profile.

To establish a loss of earning capacity, the objective is to determine as nearly as possible whether the claimant can sell his services in the competitive labor market and for how much. Davis v. Industrial Comm’n, 82 Ariz. 173, 175, 309 P.2d 793, 795 (1957). The burden of proving a loss of earning capacity is on the claimant and may be met *78 by evidence that the claimant is unable “to perform the job at which he was injured and to get other work which he can perform in light of his physical impairments.” See, e.g., Zimmerman v. Industrial Comm’n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983).

If there is testimony that these efforts were made and were unsuccessful, “the burden of going forward with contrary evidence to establish the availability of suitable employment shifts to the employer and the carrier.” Id. The employer must then make a showing that “there is employment reasonably available which the claimant could reasonably be expected to perform, considering his physical capabilities, education and training....” Germany v. Industrial Comm’n, 20 ArizApp. 576, 580, 514 P.2d 747, 751 (1973). For purposes of clarity, we treat separately the two requirements of suitability and availability.

A. Suitability of Employment

Suitability of employment requires that the following two factors, at a minimum be shown: “(1) the physical requirements of the particular employment under discussion” with specificity; and “(2) what education or training is required for the suggested employment.” Zimmerman, 137 Ariz. at 582, 672 P.2d at 926.

Here, Dr. Anderson, the treating physician, testified that because of the industrial injury, the claimant has physical limitations: The claimant can work eight hours per day and forty hours per week, but he can sit or stand for only two hours at a time, can walk one to two miles, can lift up to twenty pounds frequently, or a maximum of fifty pounds occasionally, but must change positions frequently and should avoid bending or any activity which bounces or jars his back. Based on a description of the lettuce taper job, Dr. Anderson stated that he felt that the claimant could perform that work two hours at a time, with ten minute breaks in between, for up to eight hours. Dr. Anderson emphasized, however, that the claimant could not-perform the job if it required him to bend his back.

The claimant testified that after Dr. Anderson released him for work, he contacted Salyer and returned to work for six days as a lettuce taper. The claimant stated that he quit because that job involved walking more than two miles at a time behind a lettuce processing machine and bending at the waist to pick lettuce up off the ground. When asked the duties of the position by his attorney, the claimant stated:

A. We were taping the lettuce. That’s what it’s called. Sometimes the lettuce is in [sic] the floor so we have to bend and pick it up and put the tape [sic] and turn it around and we’re walking behind the trucks.

Q. Okay. And do you — does that type of job require that you work for more than two hours at a time or did it?

A. Since the start — since I started working my waist was really hurting and I did try to finish the day but it was with a lot of pain.

Q. Okay. The question I asked was, did it require that he [sic] work more than two hours at a time?

A. Yes.

The claimant further testified that although he had looked for work in Yuma he had not found a job.

Mr. Johnson, a labor market consultant for the Fund, contradicted the claimant’s testimony regarding the physical requirements of the lettuce taper position. Mr. Johnson had reviewed both a written job description and a videotape of the lettuce taper position and testified that it required the claimant to stand on a platform of a lettuce processing machine, to take heads of lettuce wrapped in plastic from a rack, to place them in a sealing machine, and then to remove them and place them on a conveyor belt on the opposite side of the sealing machine. Based on that information and Dr. Anderson’s approval, it was Mr. Johnson’s opinion that the position was suitable for the claimant.

The record suggests the possibility of a gross miscommunication. The claimant and the labor market consultant could hardly have been talking about the same job. The

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Drunasky v. Adot
Court of Appeals of Arizona, 2018
Nieves v. opulent/ades
Court of Appeals of Arizona, 2018
Manone v. mj/cincinnati
Court of Appeals of Arizona, 2017
Giboo v. Certified Transmission Rebuilders
746 N.W.2d 362 (Nebraska Supreme Court, 2008)
Kelly Services v. Industrial Commission
106 P.3d 1031 (Court of Appeals of Arizona, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
918 P.2d 1093, 186 Ariz. 75, 218 Ariz. Adv. Rep. 3, 1996 Ariz. App. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paramo-v-industrial-comn-of-arizona-arizctapp-1996.