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Rustin v. Industrial Commission6/7/1994
WEISBERG, Judge
In this special action, petitioner Dawn Rustin ("claimant") seeks to set aside an award of the Industrial Commission of Arizona ("commission") which found that claimant had suffered no loss of earning capacity as a result of her industrial injuries. We affirm the award.
Facts and Procedural History
Claimant was injured on November 5, 1990, while working as a meat-wrapper at Safeway Stores ("employer"). In March 1991, while she was receiving worker's compensation benefits and prior to surgery to correct her industrial injury, claimant and numerous other employees received an offer from employer for a "Voluntary Employment Separation." The agreement provided that, in return for the acceptance of a one-time payment of $7,500.00, claimant would resign her employment, sign a legal release of claims, and agree not to reapply for employment with employer in its Phoenix Division. Claimant accepted the offer and received payment of the $7,500.00.
On March 9, 1992, a certified rehabilitation consultant contacted claimant's physician, Dr. Moczynski, regarding a modified job analysis for a meat-wrapper position which was available at employer's Sun City store. Dr. Moczynski indicated that claimant could perform this work as modified. The parties do not dispute that, had claimant returned to this modified position, she would have sustained no loss of earning capacity.
On April 13, 1992, claimant was notified by employer that she had suffered an unscheduled permanent partial disability and that her benefits were terminated as of April 6, 1992.
On June 11, 1992, the commission issued its findings and award for unscheduled permanent partial disability, determining that the claimant had sustained a general physical functional impairment as a result of the industrial injury. The commission also determined that claimant had not sustained any loss of earning capacity as the result of her industrial injury.
Claimant contested the commission's findings, and the commission held hearings in December 1992 and January 1993 to determine whether claimant had sustained a loss in earning capacity. Employer presented evidence that a suitable position would have been available to claimant had she not elected voluntary retirement. Employer argued that claimant's loss of earning capacity was the result of factors unrelated to her industrial injury: lost seniority rights and pay increases that claimant relinquished when she elected voluntary retirement.
In February, 1993, Safeway Stores as carrier ("carrier") and claimant entered into a stipulation that, prior to her injury, claimant was earning $1,800.00 per month with employer and that, at the close of her case in April 1992, claimant could earn $1,039.92 per month as a meat-wrapper in the Phoenix area with companies other than employer. Evidence was also presented showing that, but for her decision to accept the voluntary employment separation agreement, claimant could have returned to work for employer without a loss of earning capacity.
The ALJ considered the evidence and found that claimant's loss of earning capacity resulted from her voluntary retirement rather than from her industrial injury. The award was affirmed upon administrative review, and claimant then brought this special action.
Issues
The issues we address in this special action are:
1) Whether a position which is literally unavailable to claimant, as a result of her voluntary retirement, may still be considered as evidence of employment "reasonably available" for purposes of determining loss of earning capacity?
2) Whether a position
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