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Hand v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

December 26, 2013

LAWRENCE E. HAND, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, R and M REFUSE, Respondent Employer.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Special Action Industrial Commission ICA Claim No. 20111-250304 Carrier Claim No. 1102330 The Honorable J. Matthew Powell, Administrative Law Judge.

COUNSEL

Lawrence E. Hand, Vernon Petitioner In Propria Persona.

The Industrial Commission of Arizona, Phoenix By Andrew Wade Counsel for Respondent.

SCF Arizona, Phoenix By Mark A. Kendall Counsel for Respondent Employer / Carruer.

Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

MEMORANDUM DECISION

GEMMILL, Judge.

¶1 Lawrence E. Hand seeks special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review affirming a credit against Hand's temporary partial compensation based on a finding that suitable alternative work was available during the relevant time period. For the following reasons, we set aside the award.

FACTS AND PROCEDURAL HISTORY

¶2 Hand was employed as a garbage truck route driver for Respondent Eriksen Enterprises, d.b.a. R&M Refuse ("R&M"). The job required a commercial driver's license. On April 20, 2011, Hand suffered a work-related injury when the third, fourth, and fifth fingers of his right hand were crushed in a hydraulic compactor on the truck. Hand underwent several surgeries to repair the middle finger, which sustained the most severe damage, culminating in its amputation.

¶3 Hand was unable to work for several months after his injury while undergoing treatment. He expressed willingness to proceed with the amputation in part because he wished to cease taking pain medication and return to work. On November 1, 2011, Hand's attending physician indicated Hand was still not able to fully resume work and that he could not lift or exert any force with his right hand. Two days later, the doctor reported that Hand was able to drive, but the doctor did not clarify whether that included commercial driving.

¶4 After learning Hand had been cleared to drive, R&M owner Mike Eriksen sent a letter dated November 10, 2011, offering Hand a "temporary" job assignment, to begin November 15, that consisted of the same driving duties Hand performed before the injury. Hand testified that, after receiving the letter, he informed Eriksen that he could not legally return to commercial driving until he had his Department of Transportation medical card re-evaluated and cleared, but he offered to do any available non-driving work. Eriksen testified, in contrast, that Hand left him a voicemail stating, with no explanation, that Hand would not break the law, and that Hand did not further contact Eriksen about the job offer.

¶5 Eriksen further testified that sometime in mid-October, before he sent the letter to Hand offering the "temporary" driving job, Eriksen had verbally offered Hand a temporary, non-driving job training a new driver on Hand's routes, which Hand declined. This job would have lasted "two or three weeks" and would have been completed by November 15. Eriksen maintained that, because he wrote the letter offering Hand his old job during the same period of time as his verbal training job offer, it was implied that the alternative work was still available even after Hand declined the training job. Eriksen also stated that additional non-driving work was available, but Eriksen never mentioned other ...


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