Dye v. Industrial Commission

• Court: Arizona Court of Appeals
• Writing for the Court: HAIRE; EUBANK; JACOBSON
• Citation: Dye v. Industrial Commission, 530 P.2d 914, 23 Ariz.App. 68 (Ariz. App. 1975)
• Decision Date: 21 January 1975
• Docket Number: No. 1,CA-IC,1
• Parties: Norman K. DYE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Superlite Builders, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier, 795.

Page 914

530 P.2d 914

23 Ariz.App. 68

Norman K. DYE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Superlite Builders, Inc., Respondent Employer State Compensation Fund, Respondent Carrier,

No. 1 CA-IC 795.

Court of Appeals of Arizona, Division 1, Department B.

Jan. 21, 1975.

Gorey & Ely by Joseph M. Bettini, Phoenix, for petitioner.

Edward F. Cummerford, Chief Counsel, Phoenix, for respondent The Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, State Compensation Fund by Courtney L. Varner, Phoenix, for respondent employer and respondent carrier.

OPINION

HAIRE, Chief Judge.

On this review by certiorari the petitioner questions the sufficiency of the evidence to support the Commission's finding which limited his loss of earning capacity to 63.78%.

As a result of his incustrial injury the petitioner had lost his left thumb and a portion of his left leg by a below-the-knee amputation. Petitioner particularly complains of that portion of the Commission's findings which found that:

'. . . with a reasonable amount of effort applicant (petitioner) should be able to obtain light type employment based upon a 40 hour week at $1.40 an hour, which would provide him with an average monthly wage of $242.65 based upon salaries existent at the time of his injury.'

Petitioner's contentions on appeal are best set forth in his reply brief as follows:

'It is not our position that the petitioner is unemployable. It is entirely possible, as found by the Referee, that petitioner may 'occasionally' be employed.

'Our position, simply, is that it is illogical to conclude that the (petitioner) can 'odd job' it around in various fields, and still work eight hours per day, five days per week, fifty-two weeks per year as found by the Referee.'

The reference to the referee's finding that petitioner might 'occasionally' be employed is based upon a portion of the referee's finding 1(g) which was adopted as a portion of the Commission's finding 3(g), as follows:

'However, evidence indicates that work occasionally becomes available as a parking lot attendant, night watchman, security guard, light bench work, work in self service gas stations, and answering telephones, which at the time of injury would have paid a salary of $1.40 an hour.'

If the referee's use of the word 'occasionally' in his finding is interpreted to mean that petitioner is able to engage in full time continuous work and that the evidence indicates that full time work of a nature indicated is 'occasionally' available to him, then we hold that the evidence does not support such a finding. On the other hand, if the finding is interpreted as suggested by the petitioner, then we find a basic inconsistency in the referee's finding of work becoming occasionally available, and the conclusion that such work would be available to petitioner on a full time, 40 hour per week, 52 week per year basis.

It would serve little purpose to set forth the evidence in detail in this decision. Suffice it to say that we have reviewed the record and agree with petitioner that while the evidence does support the Commission's finding that work of the nature described does become 'occasionally' available, the evidence will not support the Commission's finding that such work would be available to a person with petitioner's disabilities on a full time 40 hour per week, 52 week per year basis.

Thje award is set aside.

EUBANK, J., concurs.

JACOBSON, Presiding Judge (specially concurring):

I agree that the award entered in this matter must be set aside. However, I would do so on a basis different than my colleagues. The majority opinion in this matter fastens upon the word 'occasionally' as it appears in the referee's findings and concludes that having found that work 'occasionally becomes available' it is improper to find an earning capacity based upon full time employment.

To me this is a distinction without a meaning. The evidence in this case dealing with earning capacity does not differ in any material aspect from the evidence in numerous cases upon which the commission has based a full time earning capacity; albeit, without the finding that the work 'occasionally' becomes available. Thus, to me, it is the evidentiary basis upon which the earning capacity determination is made that must, in the first instance, be analyzed. Upon such an analysis, I disagree that 'the evidence does support the commission's finding that work of the nature described does become 'occasionally available" as found by the majority.

Because of my analysis of this problem, an evidentiary setting is required.

In December, 1967, the petitioner, Norman K. Dye, suffered a traumatic amputation of his left thumb and severe injuries to his left foot and leg which subsequently resulted in the amputation of his left leg below the knee. The petitioner was fitted with a prothesis, but the results have not been entirely satisfactory and he is limited in his ability to walk.

Following his injuries, petitioner was employed for a short period of time at a gas station, but could not keep this job because he moved too slowly and got blisters on his stump. He was also employed as night watchman for approximately 9 days but this employment terminated when the firm moved to another city. Petitioner has sought employment through his union, through Arizona State Employment Service, at Goodwill Industries, at Western Cotton Products and through State Rehabilitation. At the time of the hearing on the issue of his earning capacity, the petitioner was unemployed.

At this hearing the carrier presented evidence through the expert who designed and fitted the prothesis worn by petitioner that petitioner could perform the duties of a night watchman and of a parking lot attendant. The carrier also presented evidence through Ross Lamoreaux, an employment expert, as to the availability of work as a night watchman, parking lot attendant, messenger and light delivery work, and as a cashier in a self-service gas station. Based upon this evidence the hearing officer found that petitioner had an earning capacity of $242.65 per month.

The test that is simple to state and is universally applied 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 Commission, 82 Ariz. 173, 175, 309 P.2d 793 795 (1957). See also, 2 Larson's Workmen Compensation Law, § 57.51; p. 10--119 (1974).

The test is based in part upon the realization that the best evidence of earning capacity is the amount the claimant is earning after his industrial injuries. Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643 (1967); Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959). If the answer to this evidentiary question is none, two lines of inquiry are immediately presented: (1) is this lack of employment due to claimant's injuries, or (2) is the lack of employment due to thje reluctance of the claimant to seek work.

The burden, initially, to show that this lack of employment is because of his industrially related injuries is on the claimant. Spears v. Industrial Commission, 20 Ariz.App. 406, 513 P.2d 695 (1973); Edmiston v. Industrial Commission, 92 Ariz. 179, 375 P.2d 377 (1962). Generally, the claimant can meet this burden by showing that his industrial injuries incapacitated him from engaging in his prior employment, that the injuries are permanent in nature, and that he has made a good faith, unsuccessful effort to seek other employment in the area of his residence. Meadows v. Industrial Commission, 12 Ariz.App. 114, 467 P.2d 954 (1970). It is important to note at this juncture that if the hearing officer is satisfied as to the bona fides of the claimant's efforts to seek employment, which have been unsuccessful, he may, at least theoretically, eliminate from his consideration one...