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Rustin v. Industrial Commission6/7/1994
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Similarly, in Doles, claimant sustained a work-related back injury . Her employer then created a modified physical therapist position by consolidating tasks previously performed by other therapists. The resulting sheltered position capitalized on claimant's experience and skill as a physical therapist, but it was offered only to claimant and was not available in the competitive labor market. This court held that, notwithstanding the tailored job 's suitability for claimant, it constituted "sheltered work" that could not be considered in determining claimant's lost earning capacity. See Doles, 167 Ariz. at 607, 810 P.2d at 605.
The rationale behind precluding "sheltered work" from consideration in determining earning capacity is to ensure that an injured worker is not held "captive" by a particular employer. An injured employee's earning capacity must be measured "not by the largesse of a particular employer, but rather by the employee's own ability to compete in the labor market." Id.
By contrast, the position offered to claimant by employer in the instant case was not "sheltered work" because the same position would be available with many other employers. The testimony indicates that the modification necessary to accommodate claimant's injuries required a change to the height of a shelf with which claimant would be working. The parties do not contest that such modification would be required of most employers by the ADA.
The ADA is a federal law that was enacted to prevent discrimination against handicapped, disabled, or injured persons. In the employment context, the ADA requires employers with fifteen or more employees to make "reasonable accommodations" to allow an otherwise qualified individual with a disability to perform his or her job , unless the accommodation would impose an undue hardship on the operation of the business. See 42 U.S.C. § 12112(b)(5)(A). The term "reasonable accommodation" includes "making existing facilities used by employees readily accessible to and usable by individuals with disabilities" and "modifications of equipment or devices . . . for individuals with disabilities." Id. § 12111(9).
In this case, the modification required of an employer to accommodate claimant's injuries would not impose an "undue hardship" on it. Because the parties do not contest that the modification would be mandated under the ADA, we conclude that the position offered by employer is indicative of the equivalent work that claimant could find in the competitive labor market and may be used to determine claimant's earning capacity.
Conclusion
We agree with the ALJ's determination that claimant's loss of earning capacity resulted from her voluntary retirement rather than from her industrial injury . "The law should compensate for losses attributable to industrial injuries, but not for losses attributable to other factors." Arizona Dep't of Pub. Safety, 176 Ariz. at 321, 861 P.2d at 606. We therefore affirm the award.
Sheldon H. Weisberg
Presiding Judge
CONCURRING:
Susan A. Ehrlich, Judge
Joe W. Contreras, Judge
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