Warren v. Industrial Commission of Arizona1/31/2002
o work as a barricader does not differentiate this case. A worker may be totally disabled from his or her primary vocation, but if he or she retains the capacity to perform any suitable, reasonably available work that pays the equivalent of the statutory maximum average monthly wage, then the worker has no loss of earning capacity despite the total disability to perform the date of injury work. See, e.g., White v. Indus. Comm'n, 87 Ariz. 154, 156, 348 P.2d 922, 923-24 (1960); Schmitz v. Indus. Comm'n, 26 Ariz. App. 404, 405-06, 549 P.2d 184, 185-86 (1976). Moreover, claimant's right to rearrange in the event of a change in his earning capacity has not been prejudiced. See generally A.R.S. ยงยง 23-1044(F), -1061(H) (1995 & Supp. 2000). If he loses his post-injury employment, then his disability to work as a barricader may be relevant to his post-injury earning capacity. See Arizona Dep't of Pub. Safety v. Indus. Comm'n, 176 Ariz. 318, 322-24, 861 P.2d 603, 607-09 (1993) (termination for misconduct); Oquita v. Indus. Comm'n, 120 Ariz. 610, 611-12, 587 P.2d 1187, 1188-89 (App. 1978) (termination for general economic conditions).
B. INCLUSION OF POST-INJURY SALARY INCREASES
Claimant next asserts that because all area supervisors received salary increases, these increases did not reward individual merit and therefore should not have been included in determining claimant's post-injury earning capacity. ASU responds by arguing that this court rejected a similar argument in Laker and that claimant is unfairly attempting to retain the benefit of the increased salary and to avoid the burden of a post-injury earning capacity exceeding the statutory maximum average monthly wage.
We disagree that the current case is comparable to Laker. There, the claimant asserted that the carrier failed to prove that "merit raises" paid to all employees were not disguised cost of living increases. Laker, 139 Ariz. at 463, 679 P.2d at 109. Because the claimant, not the carrier, had the burden of proof and "merit raises based on continued satisfactory performance or longevity" realistically reflect earning capacity, the court rejected the claimant's assertion. Id. (citing Charles v. Indus. Comm'n, 25 Ariz. App. 280, 542 P.2d 1160 (1975)).
In the current case, claimant has not attempted to shift the burden of proof to ASU and has introduced evidence concerning the salary increases. This evidence established that claimant did not receive fixed, periodic salary increases for continued employment. To the contrary, after an unspecified duration without increasing the salary of area supervisors, ASU increased the salary of all supervisors to reduce the significant disparity between its pay scale and the salary range for comparable positions in the Maricopa County labor market. Because all supervisors, even ones newly hired, would be entitled to the same salary classification, the raises were not merit increases for continued satisfactory performance.
Having distinguished Laker, we turn to ASU's policy argument that claimant unfairly seeks both to have his cake and eat it. To answer this argument, we must re-examine Whyte.
The supreme court decided Whyte in 1951, during the post-war business boom but when memories of the great depression remained fresh. See Whyte v. Indus. Comm'n, 71 Ariz. 338, 344, 346, 227 P.2d 230, 233, 235 (1951) (taking judicial notice of post-war business boom and citing depression era cases). The accepted interpretation of Whyte has been that post-injury earnings must be discounted for inflation since the date of injury. See, e.g., McPeak v. Indus. Comm'n, 154 Ariz. 232, 234-35, 741 P.2d 699, 701-02 (App. 1987); Charles, 25 Ariz. App. at 281,
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