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Paramo v. Industrial Commission6/4/1996
PATTERSON, 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 ("Salyer"), 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. the 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 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 Ariz. App. 576, 580, 514 P.2d 747, 751 (1973). For purposes of clarity, we treat
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