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Warren v. Industrial Commission of Arizona1/31/2002
AWARD SET ASIDE
This is a review of an Industrial Commission of Arizona (ICA) award and decision upon review for no loss of earning capacity. The dispositive issue is whether post-injury raises related to the general labor market rather than to individual merit must be excluded when assessing an injured worker's residual earning capacity. Concluding that the administrative law judge erroneously included these salary increases to find no loss of earning capacity, we set aside the award and decision upon review.
BACKGROUND
When injured in October 1996, petitioner employee (claimant) was employed by respondent employer (ASU) full-time as a "custodial area supervisor" and part-time as a special events barricader. Based on earnings from both employments, it was determined that claimant had an average monthly wage of $2,100.00, which was the statutory maximum wage allowance under Arizona Revised Statutes Annotated (A.R.S.) ยง 23-1041(D)(4) (1995 & Supp. 2000) for the period at issue.
While claimant was temporarily totally disabled, ASU increased the salary of all similarly employed workers in April 1997 and again in January 1998. The first increase simply changed the salary class for area supervisors and was clearly motivated by the fact that ASU had been paying at the low end of the salary range for comparable positions in the Maricopa County labor market.
The second increase was more complicated. ASU added administrative duties to claimant's date of injury job, renamed the position, and increased the salary to $27,400.00 a year. But even with this cumulative increase of 25.5% over claimant's date of injury salary, ASU still was paying 10% less than the salary for comparable positions in the Maricopa County labor market.
Claimant's industrial injury subsequently became stationary with permanent impairments and functional limitations. These impairments disabled claimant from returning to work as a barricader, but he did return to work for ASU as a custodial services assistant supervisor earning $27,400.00 a year.
The ICA issued a no loss award based on claimant's current earnings as a custodial supervisor at ASU. Claimant timely protested this no loss award.
Hearings ensued. We focus on two material conflicts. First, conflicting evidence was presented concerning the nature of claimant's work. According to ASU, the duties of a custodial services assistant supervisor were essentially administrative and consistent with claimant's limitations with only minor modifications. However, ASU's witness acknowledged that the duties of an assistant supervisor and of an area supervisor were essentially the same and that she lacked first hand knowledge of the functional requirements of claimant's date of injury job. In contrast, claimant testified that his date of injury job required substantial walking, climbing, and lifting and that fundamental modifications were necessary for him to return to work.
Second, conflicting evidence was presented concerning whether claimant's post-injury salary reasonably represented his earning capacity. According to ASU's labor market consultant, because claimant would not have received the pay increases if he had inadequately performed his job, both increases were based on merit and therefore represented claimant's current earning capacity. Also, ASU's consultant testified that the Consumer Price Index (CPI) appropriately applied to this case to adjust for inflation between claimant's date of injury and current salaries and that because the adjusted salary exceeded the statutory maximum average monthly wage, claimant did not have a loss of earning capa
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