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Special Fund Division v. Arizona Department of Transportation8/29/2000
297, 302 (App. 1984) ("the administrative law judge [must] first determine the percentage of the entire present loss of earning capacity"). To find the "entire disability," the ALJ must consider the effect of all the earning capacity disabling conditions, treating them all as unscheduled. See Ossic v. Verde Central Mines, 46 Ariz. 176, 189, 49 P.2d 396, 402 (1935) (ALJ should find the "complete effect" of the injuries); Ronquillo v. Industrial Comm'n, 107 Ariz. 542, 543, 490 P.2d 423, 424 (1971) (ALJ should determine the "entire disability as it exists after the second injury, removing them from the schedule"). The injuries are treated as "unscheduled" because the combined disability produced by successive scheduled injuries may be more than the sum of the individual disabilities alone. See Alsbrooks v. Industrial Comm'n, 118 Ariz. 480, 483, 578 P.2d 159, 162 (1978); Ossic, 46 Ariz. at 189, 49 P.2d at 402; Hoppin, 143 Ariz. at 122-23, 692 P.2d at 301-02.
If appropriate, the ALJ may re-evaluate the earnings capacity effect of a prior injury at the time of the subsequent injury. See Morris v. Industrial Comm'n, 81 Ariz. 68, 73, 299 P.2d 652, 655 (1956) ("The language of the statute . . . plainly infers that the previous disability must be re-evaluated as of the time of the Commission award."). Although the statute speaks of "percentage of disability," the ALJ may use dollar figures for earning capacity without the formality of converting those figures into percentages. See Roth, 126 Ariz. at 149 n.2, 613 P.2d at 309 n.2.
Once the "entire disability" has been determined, the ALJ must "deduct therefrom the percentage of the previous disability as it existed at the time of the subsequent injury." A.R.S. § 23-1044(E); see also Hoppin, 143 Ariz. at 123, 692 P.2d at 302 ("then deduct therefrom the percentage of the previous loss of earning capacity as it existed at the time of the industrial injury"). The balance of the disability is the responsibility of the current employer. See Bozman v. Industrial Comm'n, 20 Ariz. App. 390, 392, 513 P.2d 679, 681 (1973) ("resulting finally in the entry of an Unscheduled loss of earning capacity award for the difference"). Of course, a subsequent injury does not relieve any prior employer of its compensation responsibility for prior injuries.
Hoppin provides an example of this statutory process:
For example, an initial serious impairment might well result in a 25% loss of earning capacity, and a subsequent impairment, considered separately and excluding the effect of the first impairment, might also result in only a 25% earning capacity disability. Yet, the total loss of earning capacity resulting from the impairments when considered together might well be 100% . . . . n application of the apportionment procedure required by the previous disability provisions of A.R.S. § 23-1044(E) would result in a loss of earning capacity award of 75%. Hoppin, 143 Ariz. at 123, 692 P.2d at 302.
In this example, the "entire disability" after the second injury is 100%. The statute, however, requires that the award against the second employer be computed by "deducting therefrom the percentage of previous disability" (25%). Thus, the employer at the time of the second injury would be responsible for the 75% disability caused by the second injury. If the first injury were compensable on an ongoing basis, the first employer would remain responsible for that 25% disability compensation.
The procedure of § 23-1044(E) determines what portion of the entire earning capacity disability is the responsibility of the current employer. The unscheduling of the injuries and the determination of the "entire disability" ensure that the cu
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