Hernandez v. Indus. Comm'n of Arizona

• Decision Date: 08 November 2011
• Docket Number: No. 1 CA-IC 10-0079,1 CA-IC 10-0079
• Citation: Hernandez v. Indus. Comm'n of Arizona, No. 1 CA-IC 10-0079 (Ariz. App. Nov 08, 2011)
• Parties: ALEJANDRO M. HERNANDEZ, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CITY OF FLAGSTAFF, Respondent Employer, SCF ARIZONA, Respondent Carrier.
• Court: Arizona Court of Appeals

ALEJANDRO M. HERNANDEZ, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent CITY OF FLAGSTAFF, Respondent Employer, SCF ARIZONA, Respondent Carrier.

No. 1 CA-IC 10-0079

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT E

Dated: November 8, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)

Special Action - Industrial Commission

ICA Claim No. 20030-700088

Carrier Claim No. 0306759

The Honorable Deborah A. Nye, Administrative Law Judge

AWARD AFFIRMED

David Alan Dick and Associates

By David A. Dick

Attorneys for Petitioner

Chandler

Andrew F. Wade, Chief Counsel

Industrial Commission of Arizona

Phoenix James B. Stabler, Chief Counsel State Compensation Fund

By Chiko F. Swiney, Deputy Chief Counsel

Attorneys for Respondent Employer and Respondent Carrier

Phoenix

OROZCO, Judge

¶1 Claimant Alejandro M. Hernandez (Hernandez) seeks special action review of an Industrial Commission of Arizona (ICA) Decision Upon Review affirming the ICA's Decision Upon Hearing and Findings and Award (the 2010 Decision). Hernandez argues on appeal that the administrative law judge (ALJ) erred by finding that: (1) medical testimony on behalf of Hernandez was foundationally flawed; (2) Hernandez did not make a good-faith attempt to find suitable employment; and (3) Hernandez did not meet his burden of presenting evidence of his hypothetical earning capacity. Because the ALJ's findings were supported by substantial evidence in the record, we affirm.

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) and 23-951.A (1995) and Rule 10 of the Arizona Rules of Procedure for Special Actions. In reviewing ICA decisions, 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 mostfavorable to upholding the ALJ's decision. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

PROCEDURAL AND FACTUAL HISTORY

¶3 In February 2003, Hernandez injured his left wrist while working for Respondent Employer City of Flagstaff. In October 2004, Respondent Carrier SCF Arizona (SCF) closed Hernandez's worker's compensation claim and paid him certain specified benefits. In September 2005, SCF accepted Hernandez's petition to reopen his claim, and Hernandez subsequently underwent additional treatment for his injury.

¶4 In October 2007, SCF closed Hernandez's claim, finding his injury to be medically stationary based on the opinion of his treating pain specialist. Hernandez protested the closing and requested a hearing¹ to review his claim. Following a hearing in 2008,² a Decision Upon Hearing and Findings and Award (the 2008 Decision) was issued in which the ALJ found that: (1) if Hernandez ever suffered from Reflex Sympathetic Dystrophy (RSD),³ the condition resolved effective May 2008; (2) Hernandezwas entitled to benefits and supportive care for his wrist injury and a resulting mild permanent psychiatric impairment; and (3) Hernandez was not entitled to benefits for injuries to his head, neck or shoulders or reimbursement for 2008 emergency room bills.⁴ The ALJ also ordered Hernandez to make a sincere, honest and conscientious effort to find and perform work. Hernandez sought special action review of the 2008 Decision by this court; we affirmed the 2008 Decision in a November 2009 Memorandum Decision. Hernandez v. Indus. Comm'n (Hernandez I), 1 CA-IC 09-0015, 2009 WL 3835039 (Ariz. App. Nov. 17, 2009) (mem. decision).

¶5 This court issued a Mandate in January 2010, in which we ordered the ICA to continue all necessary proceedings in the matter. Pursuant to this Mandate, the ICA issued a Notice of Hearing to dispose of all remaining issues related to Hernandez's claim. The proceeding took place over the course of three days of hearings during May, June and July of 2010. The unresolved issues that needed to be addressed included whether Hernandez made a good-faith effort to find employment andwhether he suffered a loss of earning capacity because of the wrist injury. It is the ALJ's rulings on these issues that are now before us.

¶6 At the hearing, Hernandez argued that: (1) he made a good-faith attempt to find employment; (2) he should not be required to make a good-faith attempt to find work because he suffers from RSD and debilitating pain causally related to his injury, which render him incapable of any gainful employment; and (3) he is entitled to a finding that he suffered a complete loss of earning capacity because the RSD and pain prevent him from working.

¶7 Following the hearing, the ALJ issued the 2010 Decision, finding that: (1) the medical testimony on behalf of Hernandez was foundationally flawed because it was based on a diagnosis of RSD, which was deemed resolved effective May 2008; (2) Hernandez did not make a good-faith attempt to find suitable employment; and (3) in the absence of proof of a good-faith effort to find employment, Hernandez failed to meet his burden to demonstrate a loss of earning capacity because he failed to present any evidence of his hypothetical earning capacity. Accordingly, the ALJ concluded that Hernandez did not suffer a loss of earning capacity and was not entitled to disability benefits as of September 2, 2010.

¶8 Hernandez requested ICA review of the 2010 Decision, which the ALJ affirmed. Hernandez filed a timely Petition for Special Action Review with this court.

DISCUSSION

Medical Expert Testimony

¶9 Hernandez argues the ALJ erred by finding that the testimony of two of his medical experts was foundationally flawed. We disagree.

¶10 The ALJ based this finding on the 2008 Decision that if Hernandez ever suffered from RSD, the condition was resolved effective May 16, 2008. Because Hernandez's experts' testimony was based on their opinions that Hernandez suffers from RSD, the ALJ concluded that the testimony was foundationally flawed and irrelevant.

¶11 The resolution that Hernandez's RSD became stationary as of May 2008 became final when the mandate was issued in Hernandez I. Accordingly, the principle of res judicata prevents Hernandez from relitigating whether he suffered from RSD as of May 2008. See Nunez v. Ariz. Milling Co., 7 Ariz. App. 387, 389-390, 439 P.2d 834, 836-837 (1968) (citations omitted) (factual determinations of the ICA are "'res judicata' when not upset on rehearing or appeal" and are "binding upon theparties in subsequent litigation").⁵ The ALJ therefore correctly declined to consider medical expert testimony that Hernandez had lost earning capacity due to RSD. See Kucko v. Indus. Comm'n., 116 Ariz. 530, 531-32, 570 P.2d 217, 219 (App. 1977) (a final and binding determination that a condition is unrelated to the covered injury is res judicata); Aguiar v. Indus. Comm'n., 165 Ariz 172, 173, 797 P.2d 711, 712 (App. 1990) (citation omitted) (medical expert testimony must be based on a factually accurate foundation).

Good-faith Effort to Find Employment

¶12 Next, Hernandez puts forth various arguments, all of which concern his general contention that the ALJ erred by finding he did not make a good-faith effort to find employment. It is the duty of the ALJ to resolve any conflicts in evidence, and we defer to the ALJ's factual findings if they are substantiated by competent evidence. Preuss v. Indus. Comm'n, 15 Ariz. App. 515, 516-517, 489 P.2d 1217, 1218-1219 (1971). See also Ortega v. Indus. Comm'n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App. 1979) (the ALJ is obligated to resolve conflictsin evidence, and the ALJ's resolution will not be disturbed unless it is wholly unreasonable).

¶13 Furthermore, as the claimant seeking benefits, Hernandez has the duty to mitigate his damages. Kelly Servs. v. Indus. Comm'n., 210 Ariz. 16, 18, ¶ 8, 106 P.3d 1031, 1033 (App. 2005) (citation omitted). He has the burden of proving he suffered a loss of earning capacity, which he may do by proving he is unable to return to the date-of-injury employment and that he made a good-faith effort to obtain other suitable employment. Id. Alternatively, Hernandez could meet his burden by presenting testimony from a labor market expert to establish his hypothetical earning capacity. Id.

Hernandez's Inconsistent Testimony

¶14 Hernandez argues the ALJ erred by "[making] a great deal about [his] inconsistent testimony about looking for work" because, according to Hernandez, such inconsistencies are explained by testimony that he has "extremely poor memory." However, Hernandez's "inconsistent testimony" created a contested issue of fact regarding whether he actually looked for work. Consequently, the question on review is "whether there is reasonable evidence to support the [ALJ's] contrary finding as to this fact." D'Amico v. Indus. Comm'n, 149 Ariz. 264, 266, 717 P.2d 943, 945 (App. 1986) (citing Arrowhead Press, Inc. v. Indus. Comm'n., 134 Ariz. 21, 653 P.2d 371 (App. 1982)).

¶15 In this case, the ALJ's finding that Hernandez did not make a good-faith effort to find employment is supported by reasonable evidence, including: (1) Hernandez's own deposition testimony that he did not attempt to search for suitable employment; (2) his inability to recall any specific details about his search for employment when questioned on cross-examination; and (3) his wife's testimony that Hernandez "has not done anything except sit on [a] couch for an 8 hour period since May of 2008."

¶16 Consequently, the ALJ did not err when she resolved the conflict in evidence by disbelieving Hernandez's testimony that he looked for employment.⁶

Testimony of Doctors

¶17 In the alternative, Hernandez also claims the ALJ failed to give "appropriate weight" to the...