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Kennecott Copper Corp. v. Chavez12/13/1990
(affirming finding that worker could earn comparable wage where disability benefits, salary, and profit-sharing totaled an amount representing 85% of pre-injury wages, and worker also received clothing discount and had "bright prospects" in retail industry); ) (No. 11,943) (Apodaca, J., dissenting) (judge's determination that worker was able to earn a comparable wage affirmed as supported by substantial evidence on the whole record). A judge is allowed flexibility in making the comparable wage determination, Kincaid v. WEK Drilling Co., and the Fund has provided no compelling reason to overturn the determination in this case.
The record reflects there was testimony that, if worker obtained a master's degree, he could potentially earn a wage high enough to be considered comparable. The judge found this possibility too speculative to consider. Since there was no testimony that worker had applied for, or had been or would be accepted for a master's program, assuming he did apply, we cannot reverse the judge's finding. Cf. ) (speculative possibility that worker might at some time in future be paid for his work was not a "wage" as contemplated by the statute).
Finally, the Fund contends that the judge erred in apportioning 50% liability to employer and 50% to the Fund. We review this apportionment only to determine whether it is supported by substantial evidence on the whole record. See Tallman v. ABF (Arkansas Best Freight). Dr. Leonard testified that half of worker's impairment was due to the first injury and half to the second. Dr. Grace testified that 40% of worker's impairment was due to the first injury and 60% to the second. Although the percentage of impairment did not equal the disability, and the judge was not bound by this testimony in arriving at an apportionment figure, the testimony nonetheless establishes that the apportionment was within the range of testimony presented. See ) (expert testimony is not binding in determining apportionment; it is sufficient if apportionment is within range of testimony).
The Fund next argues that the apportionment should have been strictly based on Dr. Grace's testimony, since it was the only testimony founded on AMA guidelines in establishing impairment. We know of no requirement in the interim act that the AMA guidelines be applied to apportionment determinations. Nor would we be justified in doing so in this appeal, where the AMA impairment level was only partial, yet the disability level was total. The Fund has failed to persuade us that the disability should be divisible at the same ratio as the impairment. We thus hold that the 50% apportionment was supported by the evidence.
Conclusion
We hold that employer had actual knowledge of worker's preexisting impairment to permit recovery against the Fund. Additionally, we conclude that there was substantial evidence supporting the judge's determination that worker's disability was greater as a result of the combined impairments than as a result of the subsequent injury by itself. We also hold that there was substantial evidence to support the judge's determination that worker could not earn a comparable wage after the second injury and was consequently totally disabled. Finally, we determine that the 50% apportionment was also supported by substantial evidence. The judge's decision is therefore affirmed.
IT IS SO ORDERED.
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