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Special Fund Division v. Arizona Department of Transportation8/29/2000
Special Action--Industrial Commission
AWARD AFFIRMED
Petitioner ("Special Fund") seeks Rule 10 special action review of a decision of the Industrial Commission of Arizona ("Commission"). At issue is the interpretation of Arizona Revised Statutes Annotated ("A.R.S.") section 23-1044(E) (1995), which provides for apportionment of an award in cases of successive injuries. We affirm the Commission's decision.
FACTS
Respondent employee ("Claimant") suffered three separate industrial injuries. The first occurred in 1988, when Claimant suffered a back injury while performing heavy-duty work. This injury caused permanent impairment, resulting in functional limitations on lifting more than fifty pounds and twenty-five pounds repetitively. Claimant's average monthly wage for compensation purposes was deemed to be $1650 per month pursuant to the statutory maximum in effect at that time, although Claimant was actually earning about $2200 per month. See A.R.S. § 23-1041(E)(2) (1995). The Commission determined that Claimant had a residual capacity to earn $1133.51 per month. His lost earning capacity was therefore $516.49 ($1650.00 less $1133.51) and yielded a permanent partial disability award of $284.07 per month. See A.R.S. §§ 23-1044(C)-(D), - 1047(A)-(C).
Claimant suffered a second industrial injury in 1993. The claim for this injury to his right knee was closed with a 5% permanent impairment. The injury caused no work restrictions. The responsible carrier issued a notice for scheduled disability compensation. Claimant accepted a total payment of $1017.86. See A.R.S. § 23-1044(B)(15), (21).
Claimant's third injury, and the cause of the present proceedings, was another right knee injury suffered in 1996. This knee injury caused a permanent impairment, including functional limitations on using the right leg. This third injury precluded Claimant from performing the sort of labor he had been doing at the time of the injury.
The Commission made an initial award of $85.15 per month. Claimant protested. The employer subsequently claimed reimbursement from the Special Fund under A.R.S. § 23-1065(B). The Special Fund agreed that the scheduled award for the second injury made § 23-1065(B) applicable to this claim.
Claimant's protest brought this matter before an Administrative Law Judge ("ALJ") for determination pursuant to A.R.S. § 23-947(A). The ALJ determined that Claimant's average monthly wage at the time of the third injury was $1499. The ALJ then "rolled back" that amount to account for inflation since 1988. See Charles v. Industrial Comm'n, 25 Ariz. App. 280, 281, 542 P.2d 1160, 1161 (1975) (requiring rollback of wages to account for inflation in evaluating changes in earning capacity). The ALJ found that $1499 per month in 1996 was almost exactly equivalent in constant dollars to the $1133.51 per month in remaining earning capacity assumed in the 1988 award. Thus, Claimant's earning capacity in "constant" dollars had not changed substantially since the 1988 accident.
The parties stipulated that, considering all three of the injuries, Claimant had a residual capacity to earn $649.95 per month in light duties and that he therefore suffered a loss of earning capacity of $849.05 per month ($1499 less $649.95). The parties also stipulated that the appropriate compensation for an $849.05 loss of earning capacity would be $466.98. See A.R.S. § 23-1044(C).
The ALJ found that Claimant was entitled to $748.62 per month in total benefits: $284.07 for the 1988 injury, $2.43 per month in "Roth" credit for the 1993 injury, and $464.55 for the 1996 injury.
The S
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