 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rustin v. Industrial Commission6/7/1994
that has been modified in accordance with the requirements of the Americans With Disabilities Act ("ADA") is nonetheless sheltered work?
Standard of Review
We view the evidence "in the light most favorable to sustaining the findings and award of the Industrial Commission and will not set aside the award if it is based upon any reasonable interpretation of the evidence." Arizona Dep't of Pub. Safety v. Industrial Comm'n, 176 Ariz. 318, 324, 861 P.2d 603, 609 (1993).
Discussion
The goal in determining loss of earning capacity is to determine "as near as possible whether in a competitive labor market the subject in his injured condition can probably sell his services and for how much." Davis v. Industrial Comm'n, 82 Ariz. 173, 175, 309 P.2d 793, 795 (1957). See also Macias v. Industrial Comm'n, 139 Ariz. 182, 183, 677 P.2d 1290, 1291 (1984); Zimmerman v. Industrial Comm'n, 137 Ariz. 578, 584, 672 P.2d 922, 928 (1983); Roach v. Industrial Comm'n, 137 Ariz. 510, 514, 672 P.2d 175, 179 (1983). The determination of a claimant's earning capacity is a two-part inquiry: 1) whether job opportunities available to claimant are suitable, i.e., of the type claimant could reasonably be expected to perform in light of his or her impaired physical or mental condition, and 2) whether the position is reasonably available to the claimant. Zimmerman, 137 Ariz. at 582, 672 P.2d at 926. The burden of proof of loss of earning capacity is upon the injured worker. Id. at 580, 672 P.2d at 924. Once that burden is met, the employer and carrier then have the burden of going forward with contrary evidence. Id.
The parties have stipulated that there is suitable employment available with companies other than employer that would result in a loss of earning capacity to claimant. But, carrier contends that there is also a position available with employer that would result in no loss of earning capacity.
Because claimant does not argue that the type of position offered to her by employer is not suitable, our focus is on whether the position offered by employer was "reasonably available" to claimant.
1. Reasonably Available
Claimant contends that, since she had already elected to take a voluntary retirement from employer, which precluded her from ever returning to work for employer, the "modified" position offered to her is literally unavailable, and therefore cannot be used as a basis for determining her earning capacity.
Carrier contends that, but for claimant's voluntary retirement and acceptance of employer's buy-out, claimant could have returned to employer in a slightly modified position with no loss of earning capacity. Therefore, carrier contends, any loss of earning capacity by claimant was a result of her voluntary retirement, not her industrial injury . We agree with carrier.
An employee's exclusion from certain employment as a result of the employee's voluntary actions does not preclude consideration of that employment as evidence of the competitive labor market. See, e.g., Arizona Dep't of Pub. Safety, 176 Ariz. at 323, 861 P.2d at 608 (misconduct); Zimmerman, 137 Ariz. at 581, 672 P.2d at 925 (voluntary move).
The Arizona Supreme Court addressed a similar situation in Zimmerman. There, after claimant was injured, he changed his residence from
Page 1 2 3 4 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|