NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MAX NIEVES, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AGRIUM U.S., INC., Respondent Employer,

ACE AMERICAN INSURANCE CO. C/O ESIS/ACE USA (AZ), 

Respondent Carrier.

No. 1 CA-IC 14-0068

Special Action – Industrial Commission

ICA Claim No. 20101-940007

Carrier Claim No. C494C1679073/888

Joann C. Gaffaney, Administrative Law Judge Retired

AWARD AFFIRMED

COUNSEL

Barton Baker, Attorney at Law, Yuma

By Barton L. Baker

Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent
2

Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson

By Eric W. Slavin

Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which

Presiding Judge Patricia K. Norris and Judge Diane M. Johnsen joined.

C A T T A N I, Judge:

¶1 This is a special action review of an Industrial Commission of 

Arizona (“ICA”) award and decision upon review denying any disability 

benefits. Claimant Max Nieves presents one issue on appeal: whether the 

administrative law judge (“ALJ”) improperly relied on the opinion of labor 

market expert Lisa Clapp in concluding that he has not suffered a loss of 

earning capacity (“LEC”). For reasons that follow, we affirm the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 On April 15, 2010, Nieves suffered a shoulder injury while 

working as a truck driver for the respondent employer, Agrium US Inc.

(“Agrium”). His condition eventually became medically stationary, and his 

claim was closed with a one percent unscheduled permanent partial 

impairment. The ICA then entered its findings and award for a 53.02% 

LEC, which entitled Nieves to receive $780.02 per month in disability 

benefits. Nieves timely protested the ICA’s award.

¶3 The ALJ heard testimony from Nieves and two labor market 

experts, then found that Nieves had no LEC. Nieves requested 

administrative review, and the ALJ supplemented and affirmed the award.

¶4 Nieves then brought this appeal. This court has jurisdiction 

under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(2), 23-951(A), 

and Arizona Rule of Procedure for Special Actions 10.1

 

1 Absent material revisions after the relevant date, we cite a statute’s 

current version.
NIEVES v. AGRIUM US/ACE

Decision of the Court

3

DISCUSSION

¶5 In reviewing findings and awards of the ICA, 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 the light most favorable to upholding the ALJ’s award. 

Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 

2002).

¶6 Nieves argues that the ALJ erred by adopting Clapp’s 

testimony that work as a “no touch” truck driver was suitable and 

reasonably available employment for him. To establish a claimant’s 

residual earning capacity, there must be evidence of job opportunities that 

are (1) suitable, i.e., which the claimant could reasonably be expected to 

perform considering his physical capabilities, education, and training and 

(2) reasonably available. See Germany v. Indus. Comm’n, 20 Ariz. App. 576, 

580, 514 P.2d 747, 751 (1973).

¶7 The burden of proving an LEC is on the claimant. See

Zimmerman v. Indus. Comm’n, 137 Ariz. 578, 580, 672 P.2d 922, 924 (1983). 

The claimant must establish he is unable to return to date-of-injury 

employment and also must either present evidence of a good-faith effort to 

obtain other suitable employment or testimony from a labor market expert 

to establish his residual earning capacity. See D’Amico v. Indus. Comm’n, 149 

Ariz. 264, 266, 717 P.2d 943, 945 (App. 1986). If the claimant testifies he 

made a good-faith effort but could not find work, the burden of going 

forward with contrary evidence to establish suitable and reasonably 

available employment shifts to the employer and carrier. Zimmerman, 137 

Ariz. at 580, 672 P.2d at 924.

¶8 In this case, Nieves performed a good-faith work search and 

presented testimony from labor market expert Erin Welsh. Welsh testified 

she agreed with the ICA’s findings and award, which concluded that 

Nieves could work full time as a fast food worker and earn minimum wage.

¶9 To meet the shifted burden of proof, Ace American Insurance 

Co. (“Ace”) presented testimony from Clapp, who agreed Nieves could 

work in a fast food restaurant. But Clapp also testified that work as a “no 

touch” truck driver was suitable for and reasonably available to Nieves and

would result in no LEC. Clapp explained that a “no touch” truck driver 

does not have to load or unload cargo. This type of driving typically is 
NIEVES v. AGRIUM US/ACE

Decision of the Court

4

regional, with trips limited to one to three days.

2 Clapp testified that this 

job constitutes medium-duty work, and that Dr. Bailie’s medical report did 

not contain any findings that would suggest that Nieves would be unable 

to perform such work. Clapp noted that after his industrial injury, Nieves

had renewed his commercial driver’s license (“CDL”), which required him 

to pass a medical examination, and he had work experience performing this 

type of driving.

3 Nieves testified that he has been looking for work as a 

driver, and that he has previously worked as a driver, including driving 

trucks locally, throughout “the whole border area,” and “towards Flagstaff, 

. . . Phoenix, and El Centro, California.” He also acknowledged driving a 

truck to the Oakland, California area.

¶10 The labor market expert’s role is to consider input from the 

treating physician regarding the claimant’s physical capabilities and to 

match them to requirements of specific jobs in the open labor market. See 

Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550, 556, 744 P.2d 462, 468 (App. 

1987). Although the expert’s experience and training render his or her 

opinion admissible, “this type of evidence is not so completely outside the 

understanding of the average layman, that a contrary conclusion cannot be 

reached.” Le Duc v. Indus. Comm’n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227 

(App. 1977). “As with most expert opinions, the trier of fact is entitled to 

consider it, but give it only the weight to which he deems it is entitled.” Id.

¶11 In determining a claimant’s residual earning capacity, the ALJ 

must consider “any previous disability, the occupational history of the 

injured employee, the nature and extent of the physical disability, the type 

of work the injured employee is able to perform subsequent to the injury, 

any wages received for work performed subsequent to the injury and the 

age of the employee at the time of injury.” See A.R.S. § 23-1044(D). In this 

case, the ALJ resolved the conflict between the labor market experts in favor 

of Clapp’s testimony and found that Nieves could work as a “no touch”

truck driver with no LEC.

¶12 Nieves asserts that Clapp failed to present an accurate picture 

of his limited English language skills to prospective employers, and for that 

 

2 Clapp contrasted this with over-the-road truck drivers, who drive 

from coast to coast and may be on the road for up to three weeks at a time 

virtually living out of their trucks.

3 On cross-examination, Welsh agreed that Nieves has a current CDL 

and that the medical report relating to his injury did not suggest that Nieves 

would be precluded from working as a “no touch” truck driver.
NIEVES v. AGRIUM US/ACE

Decision of the Court

5

reason, the jobs that she proposed are not suitable for or reasonably 

available to him. We disagree.

¶13 Clapp testified regarding the profile she presented to 

prospective employers:

Q. [By Nieves’s counsel] Okay. Did your profile of Mr. Nieves 

include the fact that he had very limited English, spoke 

mainly only Spanish?

A. [Clapp] It indicated that his English was limited but that 

that had not precluded him from working as a truck driver 

for many years prior to that.

Q. Well, it didn’t preclude him in Yuma, Arizona, where most 

of the people are Hispanic, but did you ask these employers 

that you surveyed here - - did you tell them that he primarily 

spoke only Spanish?

A. I did not. And Mr. Nieves testified himself that he drove a 

truck in California and in Arkansas as well which is where he 

learned most of his English.4

Q. Well, let me - - let me correct you. I believe he worked for 

Tyson at a poultry plant in Arkansas.

A. He also reported that he drove a truck up there.

Q. Okay. Did you ask any of these truck positions that you 

surveyed whether or not language made a difference to them 

in decision to hire a person, whether they could take 

directions and, you know, that kind of thing in Spanish?

A. You know, I didn’t ask that question in particular. I went 

out on a limb and assumed because he had worked for at least 

three different employers as a truck driver and his Englishspeaking capabilities didn’t preclude him from doing that 

 

4 Clapp reviewed Nieves’s January 29, 2013 deposition testimony as 

part of her LEC evaluation. Clapp stated that Nieves had indicated that he 

can understand a little English, and that he learned English when he 

worked in Arkansas packing chicken for Tyson.
NIEVES v. AGRIUM US/ACE

Decision of the Court

6

that he had demonstrated enough proficiency to get by with 

what he would need as a truck driver.

Q. Okay. You just made the assumption that it wouldn’t 

matter?

A. I made the assumption that because he had demonstrated 

the ability to work as a truck driver for at least three 

employers previously and do so successfully where his 

English-speaking capability was not an issue that he would 

be able to do that post-injury.

Thus, although Clapp acknowledged that she did not specifically ask 

prospective employers whether English skills were required, she correctly 

informed them that Nieves’s English was limited.

¶14 We conclude that the ALJ did not abuse her discretion by 

finding that Clapp accurately portrayed Nieves to prospective employers, 

that Nieves was looking for work as a truck driver, had a current CDL, and 

had successfully worked as a driver for several different companies. 

Accordingly, we affirm the ALJ’s determination that Nieves has not 

suffered a loss of earning capacity.

CONCLUSION

¶15 The award is affirmed.