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Special Fund Division v. Arizona Department of Transportation8/29/2000
pecial Fund argued that the 1988 award of $284.07 per month should also be deducted from the $464.55 award under A.R.S. § 23-1044(E). The ALJ declined to make that deduction:
The undersigned further finds that the applicant is not receiving double compensation. He suffered a loss of earning capacity as a result of his 1988 industrial injury and was awarded $284.07 based on his ability to earn $1,133.51. This is almost exactly what he was earning on a roll back wage at the time of his October 7, 1996 industrial injury. Therefore, the applicant is entitled to additional loss of earning capacity as a result of his October 7, 1996 industrial injury. Section 23-1044(E) which requires that a previous disability be deducted from the total disability has been satisfied.
The Special Fund requested review and the ALJ affirmed the award upon review. The Special Fund then filed this Rule 10 Petition for Special Action. We have jurisdiction under A.R.S. § 12-120.21(A)(A) (1992); A.R.S. § 23-951(A) (1995); and Rule 10, Arizona Rules of Procedure for Special Actions.
DISCUSSION
On review, we give deference to the ALJ's factual findings. See PFS v. Industrial Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997). We review de novo his legal conclusion regarding apportionment. See id. We conclude that, although the ALJ did not use precisely the same terminology as the statute, he made the required findings and reached the appropriate conclusion under A.R.S. § 23-1044(E).
1. The Apportionment Statute.
At issue is the interpretation of A.R.S. § 23-1044(E). That statute requires apportionment of compensation for successive injuries that result in permanent partial disability:
In case there is a previous disability, as the loss of one eye, one hand, one foot or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. A.R.S. § 23-1044(E) (emphasis added).
To trigger the apportionment statute, a claimant must be found to have a "previous disability." As used in this section, the word "disability" refers to "earnings capacity disability." See R.G. Roth Constr. Co. v. Industrial Comm'n, 126 Ariz. 147, 149, 613 P.2d 307, 309 (App. 1980). The apportionment statute therefore applies only when a claimant has a prior condition that results in an "actual loss of earning capacity." See W.F. Dunn, Sr. & Son v. Industrial Comm'n, 160 Ariz. 343, 349, 773 P.2d 241, 247 (App. 1989). A "previous disability" may be industrial or non-industrial, scheduled or unscheduled. See McKinney v. Industrial Comm'n, 78 Ariz. 264, 266, 278 P.2d 887, 888 (1955) (industrial or non-industrial). To bring the apportionment statute into play, however, the disability must be permanent and must not merely aggravate a previous, non-disabling condition. See Morrison-Knudsen Co. v. Industrial Comm'n, 115 Ariz. 492, 495, 566 P.2d 293, 296 (1977) (no apportionment if injury aggravates a prior, non-disabling condition); Hester v. Industrial Comm'n, 178 Ariz. 587, 590, 875 P.2d 820, 823 (App. 1993) (prior disability must be permanent to trigger apportionment statute). Here, it is undisputed that at the time of the third accident Claimant suffered from a previous disability that was permanent and had caused a loss of earning capacity.
If a previous disability brings a case within § 23-1044(E), the ALJ must first determine the "entire disability" suffered by the claimant. See A.R.S. § 23-1044(E); Hoppin v. Industrial Comm'n, 143 Ariz. 118, 123, 692 P.2d
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