Warren v. Industrial Commission of Arizona1/31/2002
city.
According to claimant's labor market consultant, claimant had a loss of earning capacity for three reasons. First, claimant was able to work two jobs before his injury but was unable to work at one of the jobs after it. Second, because State of Arizona employees have received little or no raises over the years, a rollback calculation based on the CPI was inappropriate. Third, because all employees in the same class as claimant received the same increases in salary, the increases were not merit increases and therefore should not be included to calculate claimant's post-injury earning capacity.
After receiving post-hearing memoranda, the administrative law judge issued an award for no loss of earning capacity. He found that claimant was unable to return to work as a barricader but "did return to work [with accommodations] as a custodial area supervisor, although the specific job title for that work had changed" and was earning approximately $27,000.00 annually. Noting that post-injury earnings raise a rebuttable presumption of commensurate earning capacity, the administrative law judge found that claimant had not rebutted the presumption by proving that his actual earnings did not represent his earning capacity as a result of factors such as employer sympathy, sheltered or transitory employment, or that continuing to work would aggravate his industrially related condition. The administrative law judge also accepted ASU's consultant's opinion that the CPI appropriately applied to claimant's post-injury earnings and that his rolled-back salary exceeded the statutory maximum average monthly wage.
The administrative law judge affirmed this award on administrative review. Claimant then timely filed this Rule 10 special action.
This court has jurisdiction under A.R.S. § 12-120.21(A)(2) (1992), A.R.S. § 23-951(A) (1995), and Rule 10, A.R.C.P. We deferentially review reasonably supported factual findings but independently review legal conclusions. PFS v. Indus. Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997).
DISCUSSION
A. DISABILITY TO WORK AS BARRICADER
On review, claimant concedes that his post-injury salary rebuttably established his earning capacity. See, e.g., Laker v. Indus. Comm'n, 139 Ariz. 459, 462, 679 P.2d 105, 108 (App. 1984) (citation omitted). However, claimant asserts that because concurrent earnings contributed to his average monthly wage and the industrial injury has disabled him from one of the contributing employments, he rebutted the presumption. To conclude otherwise, the argument continues, would violate the equal measure rule.
We disagree. To satisfy the equal measure rule, the average monthly wage and post-injury earning capacity must be measured by the same "yardstick." Whyte v. Indus. Comm'n, 71 Ariz. 338, 344, 227 P.2d 232, 233-34 (1951); see also, e.g., Reavis v. Indus. Comm'n, 196 Ariz. 280, 284, 20, 995 P.2d 716, 720 (App. 1999). For example, if an average monthly wage is based on part-time employment, post-injury earning capacity may not be based on full-time employment. See Elias v. Indus. Comm'n, 175 Ariz. 507, 509, 858 P.2d 652, 654 (App. 1992). Similarly, if an average monthly wage does not include overtime, then post-injury earning capacity may not include overtime. See Arizona Pub. Serv. Co. v. Indus. Comm'n, 16 Ariz. App. 274, 278, 492 P.2d 1212, 1216 (App. 1972) (dictum).
The converse does not follow under the equal measure rule. Although an average monthly wage is based on full-time or overtime employment, post-injury earning capacity may be based on fewer hours of higher paying employment.
Claimant's total disability t
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