Crystal Bottled Waters v. Industrial Commission

OPINION TOCI, Judge. This is a review of an award for permanent partial disability. In finding that the employee suffered lost-earning capacity based upon work as a light-duty delivery driver, the administrative law judge (“AU”) rejected the uneontradicted opinion of petitioners’ vocational expert that higher-paying work as a limousine driver would be suitable and affirmatively found that such work would be unsuitable. We hold that: (1) the AU may properly disregard a vocational expert’s uncontradicted opinion that certain work is suitable for claimant and (2) the AU properly inferred from the evidence that limousine work was unsuitable employment for claimant. [185] FACTUAL AND PROCEDURAL BACKGROUND While working as a route driver for petitioner employer, a bottled water company, respondent employee (“claimant”) injured his back. When the claimant’s back injury became stationary, his doctor released him to full-time work subject to certain limitations. These limitations prohibited him from lifting anything over fifty pounds and allowed him to only occasionally lift objects between eleven and fifty pounds. Each party had a vocational expert testify about suitable work for the claimant. Both experts agreed that the claimant could work as a light-duty delivery driver and that such work was reasonably available to the claimant. In addition, although claimant’s expert did not consider whether claimant was employable in any other positions, petitioners’ expert concluded that claimant could work at a higher rate of pay as a limousine driver. On cross-examination, however, claimant’s attorney raised the issue whether the job of a limousine driver required claimant to lift in excess of the limitations prescribed by claimant’s doctor. Petitioners’ expert then conceded that limousine drivers must handle luggage as part of their employment. Nevertheless, the expert contended that this duty would be unlikely to restrict the claimant because he would receive assistance from bellmen and skycaps and, “the way people travel nowadays,” he would not have to lift or carry in excess of his limitations. Although the petitioners’ expert also testified that he had actually placed injured workers as limousine drivers and that his surveys indicated that employers would hire claimant despite his limitations, he acknowledged that he did not know whether any of these employers had ever hired a disabled worker. After considering this evidence, the ALJ issued an award for lost-earning capacity. The AU based the award on the claimant’s ability to work as a light-duty delivery driver. Regarding the suitability of work as a limousine driver, the ALJ stated: Although ... [petitioners’ expert] minimized the assertion that limousine drivers would be required to handle luggage as part of the job, the undersigned is not bound by this testimony. See Le Duc v. Industrial Comm’n, 116 Ariz. 95, 567 P.2d 1224 (App.1977). As noted by the court in Le Due, the type of evidence presented by employment experts is not so completely outside the understanding of an average layman that a contrary conclusion cannot be reached. It is the finding of the undersigned that the limousine position would not be suitable to applicant’s physical limitations. (Emphasis supplied.) When the ALT affirmed on administrative review, the petitioners brought this special action. We have jurisdiction pursuant to Ariz.Rev.Stat. Ann. (“A.R.S.”) section 12-120.21(A) and Rule 10, Rules of Procedure for Special Actions. DISCUSSION Petitioners argue that the ALT must accept their vocational expert’s uncontradicted and unimpeached evidence that the claimant can work as a limousine driver. We disagree. Unlike an uncontradicted medical opinion, which the ALT must accept, Revles v. Industrial Comm’n, 88 Ariz. 67, 74, 352 P.2d 759, 764 (1960), the ALJ may reject the uncontradicted opinion of a vocational expert. Le Duc v. Industrial Comm’n, 116 Ariz. at 98, 567 P.2d at 1227 (App.1977). We also conclude that the ALT had a reasonable basis for finding that limousine driving was unsuitable employment for claimant. In Le Due, this court addressed the sufficiency of the evidence supporting an award finding that the claimant had an earning capacity as a waitress. The claimant relied on a vocational expert, who testified that the claimant was unemployable as a waitress. The employer and carrier did not present contrary expert opinion. Instead, they relied on various labor market surveys completed by a graduate student. The claimant argued that the trier of fact had to accept the uncontradicted opinion of the vocational expert. We rejected this contention, stating: “As with most expert opinions, the trier of fact is entitled to consider [186] it, but give it only the weight to which he deems it entitled.” Id. at 98, 567 P.2d at 1227. Here, the petitioners’ vocational expert testified that the claimant could work as a limousine driver because such employment met the test of suitability and availability. In other words, employment as a limousine driver was available and the claimant could reasonably be expected to be able to perform such work. See Macias v. Industrial Comm’n, 139 Ariz. 182, 677 P.2d 1290 (1984); Roach v. Industrial Comm’n, 137 Ariz. 510, 672 P.2d 175 (1983); Zimmerman v. Industrial Comm’n, 137 Ariz. 578, 672 P.2d 922 (1983). Satisfying this test, however, establishes only the legal sufficiency of an expert’s opinion; it does not establish that the opinion is conclusive, even in the absence of contrary expert opinion as to suitability and availability of employment. Although the claimant’s vocational expert never contradicted such evidence, the lack of controverting evidence does not prevent the AU from considering petitioners’ expert evidence and giving it “the weight to which he deems it entitled.” Le Due, 116 at 98, 567 P.2d at 1227. Accordingly, the AU could properly conclude that the expert’s opinion was entitled to no weight and thus entirely reject it. The petitioners also argue that the AU’s finding that work as a limousine driver would be unsuitable for claimant was not supported by the record. The petitioners assert that because the claimant did not controvert petitioners’ expert’s testimony that limousine driving was suitable, the AU was bound by this evidence and could not make a finding that limousine driving was unsuitable without relying upon evidence outside the record. The petitioners argue that the AU, in the face of undisputed evidence of suitability, must have taken judicial notice that the lifting requirements of limousine driving would exceed the claimant’s physical restrictions. According to petitioners, the AU erred because judicial notice cannot be taken of a disputed fact. We disagree with petitioners’ argument. First, petitioners’ argument relies upon an invalid premise that the AU was bound by the uncontroverted testimony of petitioners’ expert that limousine driving was suitable employment for claimant. We held above that the AU was free to accept or reject the uncontroverted testimony of petitioners’ vocational expert. Because petitioners failed to persuade the AU that limousine work was suitable employment, the AU properly rejected petitioners’ expert opinion on this point. While the AU may accept or reject the opinion of petitioners’ expert, however, he may not make an affirmative finding of unsuitability, absent supporting evidence in the record. In other words, the AU may not rely upon judicial notice of a disputed fact or personal knowledge1 to supply essential evidentiary facts. Second, although the AU may not affirmatively find unsuitability without supporting evidence in the record, we conclude that such evidence exists here. While the petitioners’ expert testified that the claimant, despite his lifting restrictions, could work as a limousine driver, petitioners’ expert also conceded that limousine drivers must handle luggage. Petitioners’ expert attempted to minimize this fact by testifying that people today generally travel without much luggage and that the claimant would receive assistance from bellmen and skycaps. The petitioners’, expert, however, never conclusively established that the claimant’s employment as a limousine driver would not violate his lifting restrictions. Furthermore, although the petitioners’ expert testified that “very often” limousine drivers have assistance at hotels and airports in unloading luggage, the AU could [187] infer from this testimony that such assistance was not always available at hotels and airports and never available in other locations. Thus, a reasonable inference from petitioners’ expert’s testimony was that limousine driving was not suitable to claimant’s physical limitations. See Brooks v. Industrial Comm’n, 136 Ariz. 146, 664 P.2d 690 (App.1983) (where several inferences may be drawn from the evidence, the drawing of any one inference is the exclusive privilege of the AU). The conclusions of the AU will not be set aside unless there is no reasonable basis for the determination. Id. We conclude that there is a reasonable basis for the AU’s finding that limousine driving was unsuitable employment for claimant. CONCLUSION In order to establish that claimant could work at a higher rate of pay than the rate of pay earned by a light-duty delivery driver, petitioners had to prove that limousine driving was suitable employment for claimant. Because petitioners failed to persuade the AU that limousine work was suitable employment, the AU properly rejected petitioners’ expert’s opinion on this point and found that limousine driving was not suitable employment for claimant. GERBER, P.J., and EHRLICH, J., concur. Footnotes [1] Larson states: A commission’s expert knowledge and experience may be put to use in two different ways— one improper and the other proper — which are sometimes difficult to distinguish. The improper use is the nonrecord supplying of essential evidentiary facts ...; the other is the supplying of judgment in the form of weighing and even rejection of expert testimony by checking it against the commission’s own cumulative experience. 2B Arthur Larson, § 79.62 at 15-426.272(6)-(8), (11).