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Rustin v. Industrial Commission6/7/1994
Tucson to St. George, Utah. Claimant was unable to obtain satisfactory work in St. George and sought an award for lost earning capacity as a result of his industrial injury. At hearings, the commission introduced evidence of positions "reasonably available" to claimant in the Tucson area. The court allowed the evidence, reasoning that "where claimant voluntarily moves from the labor market where the injury was sustained, findings regarding his loss of earning capacity may be based on the job market in either his new residence or in the locality where the injury was sustained." Zimmerman, 137 Ariz. at 581, 672 P.2d at 925. Therefore, for purposes of determining lost earning capacity, the competitive labor market included positions available to claimant in Tucson, notwithstanding the fact that claimant could not accept them.
In this case, the voluntary employment separation agreement only precludes claimant from returning to work with employer in Phoenix. It is the wages that the claimant would be able to earn upon re-entering the market, without regard to limitations voluntarily imposed by her, that determine whether a loss of earning capacity resulted from her industrial injury . Here, the competitive labor market available to claimant includes all appropriate positions in the Phoenix area. The position offered by employer was suitable to claimant's abilities, was within the area of her residence, and would have resulted in no loss of earning capacity to claimant. Since the position was suitable and, but for claimant's voluntary conduct, reasonably available, it was an accurate reflection of the competitive labor market.
Accordingly, we hold that the literal unavailability of a position is not to be considered in determining lost earning capacity when the position is otherwise suitable and reasonably available, and the unavailability is the result of claimant's voluntary retirement.
2. Sheltered Work
Next, claimant argues that the position offered by employer is not an accurate reflection of the competitive labor market because the position was "modified" by employer to accommodate her industrial injury . Accordingly, claimant contends that the position is impermissible "sheltered work." We disagree.
"Earning capacity is the wage the injured worker can achieve in the competitive labor market. . . . Earning capacity, however, cannot be accurately measured by make-work or sheltered work" that an employee could not find if he were forced into a competitive market. Doles v. Industrial Comm'n, 167 Ariz. 604, 606, 810 P.2d 602, 604 (App. 1990).
A modified position that has been created especially for a claimant and is not available in the competitive marketplace is considered "sheltered work" and cannot be used to determine earning capacity. See Allen v. Industrial Comm'n, 87 Ariz. 56, 67-68, 347 P.2d 710, 717-18 (1959); Doles, 167 Ariz. at 606, 810 P.2d at 604. For example, in Allen, the employer rehired at full salary a tire shop employee whose permanent injuries had impaired the efficiency of his work. The employee was obliged to change tires, but could change fewer than before his injury . The employer admitted that the employee probably would not have been hired in the competitive labor market. The supreme court therefore set aside the commission's finding of no loss of earning capacity because the employee would have been unable to find equivalent work in the competitive labor market. Allen, 87 Ariz. at 67-68, 347 P.2d at 717-18.
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