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Hester v. Industrial Commission9/28/1993
arate and apart from the requirements of A.R.S. ยง 23-1044(D) and (E) relating to previous disabilities, subsequent disabilities resulting from unrelated impairments occurring after the injury might develop. If such subsequent unrelated disabilities do occur, further adjustment would have to be made to determine the loss of earning capacity attributable to the industrial injury.
Id. at 123 n.5, 692 P.2d at 302 n.5 (emphasis added). Applying this principle, the Hoppin court considered the possibility of claimant's multiple sclerosis becoming earning capacity disabling after the back injury :
The industrial injury would not be a proximate cause of that portion of the disability attributable to the natural progression of the unrelated and unaggravated multiple sclerosis. In arriving at the employee's compensable loss of earning capacity, the administrative law Judge would be required to eliminate the disabling effects of the multiple sclerosis and determine the employee's loss of earning capacity based solely on the impairments resulting from the industrial injury.
Id. at 125, 692 P.2d at 304 (citations omitted); see also Lazarin v. Industrial Comm'n, 135 Ariz. 369, 372-73, 661 P.2d 219, 22-23 (App. 1983) (impairment due to industrial injury must be determined without regard to nonindustrial injury, then apportioned so that the recovery is only for industrial injury disability). Thus, a claimant cannot recover twice for loss of the same earning capacity. If Concurring industrial causes produce a disability, the total amount of lost earning capacity limits a claimant's recovery.
We conclude that the instant case is most like the described hypothetical from Hoppin. Instead of a worsening nonindustrial condition such as multiple sclerosis, however, claimant's first industrial injury worsened and became earning capacity disabling. When considering the award for injury #2, the A.L.J. had to eliminate the disabling effects of injury #1. Claimant has already been compensated for his disability to work as a form setter. Hoppin therefore applies and prevents claimant from receiving a double recovery.
Conclusion
For these reasons, we affirm the award denying claimant additional permanent partial disability benefits for the November 1979 industrial injury .
Sheldon H. Weisberg, Judge
CONCURRING:
Ruth V. McGregor, Presiding Judge
Sarah D. Grant, Judge
Page 1 2 3 4 Arizona Personal Injury Attorneys
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