Four seasons/am Zurich v. Cvijetic
1 CA-IC 16-0039
| Ariz. Ct. App. | Jun 13, 2017Background
- In August 2010 Petko Cvijetic, a laundryman for Four Seasons, injured his low back; American Zurich accepted benefits but later closed the claim after IMEs found him stationary with no permanent impairment.
- Cvijetic challenged closures; after hearings the ICA initially found a 15% impairment and a 32.85% loss of earning capacity (LEC), awarding partial permanent disability benefits.
- Cvijetic requested an ICA hearing; testimony included his treating physician (Dr. Sanjay Patel), an IME (Dr. Gary Dilla), and two labor market experts (Richard Prestwood for Cvijetic and Lisa Clapp for American).
- Dr. Patel concluded Cvijetic had ongoing pain, specific physical restrictions (30 hours/week, limited standing/walking/sitting, lifting limits, uses a cane) and could work only in a modified capacity; Dr. Dilla offered a less restrictive view.
- Labor market expert Prestwood, relying on Dr. Patel’s restrictions and language/skill deficits, concluded Cvijetic is an "odd-lot" employee with total LEC; the ALJ adopted Prestwood’s opinion and awarded permanent total disability benefits.
- The Court of Appeals affirmed, finding the ALJ permissibly resolved conflicts in medical and vocational testimony and properly applied law regarding proof of LEC and the odd-lot doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cvijetic proved total loss of earning capacity (LEC) despite not conducting a good-faith job search | Cvijetic: expert labor-market testimony can establish total LEC without a claimant conducting a good-faith job search; he is an odd-lot employee and unemployable | American: without a good-faith post-injury job search, claimant cannot shift burden or prove total LEC | Court: Affirmed ALJ — claimant met burden via credible labor-market expert; ALJ properly resolved conflicts and found odd-lot/total LEC, so award stands |
Key Cases Cited
- Young v. Indus. Comm’n, 204 Ariz. 267 (App. 2003) (standard of review for ICA factual findings and legal questions)
- Lovitch v. Indus. Comm’n, 202 Ariz. 102 (App. 2002) (appellate review principles for ICA decisions)
- Zimmerman v. Indus. Comm’n, 137 Ariz. 578 (1983) (claimant bears burden to prove LEC; definition of odd-lot employee)
- D’Amico v. Indus. Comm’n, 149 Ariz. 264 (App. 1986) (labor-market expert may establish residual earning capacity in lieu of a job search)
- Landon v. Indus. Comm’n, 240 Ariz. 21 (App. 2016) (clarifies proof options for LEC: job search or expert testimony)
- Adkins v. Indus. Comm’n, 95 Ariz. 239 (1964) (medical experts identify impairments; limits of physician testimony about specific job capabilities)
- Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550 (App. 1987) (labor-market expert’s role matching medical restrictions to available jobs)
- Perry v. Indus. Comm’n, 112 Ariz. 397 (1975) (ALJ’s duty to resolve conflicting medical testimony)
- Rent A Center v. Indus. Comm’n, 191 Ariz. 406 (App. 1998) (ALJ may adopt one expert’s opinion over another)
- Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43 (1988) (factors for resolving conflicting expert opinions)
- Davis v. Indus. Comm’n, 82 Ariz. 173 (1957) (objective of determining claimant’s ability to sell services in open labor market)