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Kelly Services v. Industrial Commission of Arizona2/8/2005
This is a special action review of an Industrial Commission of Arizona (ICA) decision upon review for a permanent total disability. The Administrative Law Judge (ALJ) based her determination on her conclusion that, as a matter of law, the claimant's geographical labor market could not be expanded outside Yucca, Arizona. Because a proper determination of the relevant geographical labor market in a given case is a factual inquiry dependent on a variety of factors, we set aside the award.
FACTUAL AND PROCEDURAL HISTORY
On January 6, 2000, the respondent employee (the claimant) was employed by the petitioner employer, Kelly Services (Kelly), as a test driver at the Ford Motor Company Proving Ground in Yucca, Arizona. On that date, he was involved in a motor vehicle accident and sustained broken ribs and cervical and lumbar injuries. Following surgery for these injuries, the claimant's medical condition eventually became stationary and was closed with an unscheduled permanent partial impairment.
The ICA then entered its findings and award for a 24 percent unscheduled permanent partial impairment and a 26.46 percent loss of earning capacity (LEC), which resulted in monthly disability benefit payments to the claimant of $190.95. The claimant timely requested a hearing, asserting that he had sustained a "greater loss of earning capacity." Four ICA hearings were held in which testimony was received from the claimant, his treating physician, an independent medical examiner, and two labor market experts. The testimony established that the claimant resided in Yucca, a town of approximately two-hundred people, and had attempted but was unable to find any suitable employment in Yucca with an employer that could accommodate his work restrictions. The claimant testified that he had not sought employment in either Kingman or Lake Havasu City because a commute of that distance, approximately 24 and 34 miles, respectively, on a daily basis would be too difficult in light of his physical disabilities and his lack of a sufficiently reliable vehicle.
Following these hearings, ALJ Schatz entered an award for an unscheduled permanent partial disability. He specifically rejected the claimant's credibility, stating " n the issue of applicant's ability to drive a motor vehicle, I find the applicant is not credible and conclude therefrom, that applicant is capable of driving." He also resolved the medical conflict in favor of the independent medical examiner, Kevin Ladin, M.D., and adopted the labor market testimony of Kelly's expert, Mark Kelman. Based on Mr. Kelman's labor market report, the ALJ found the claimant was entitled to monthly disability benefits of $190.95.
The claimant filed a request for review of the award, and because of ALJ Schatz's retirement, the case was reassigned to ALJ Turney. She entered a Decision Upon Review reversing the prior award, finding that claimant was entitled to a permanent total disability award in the amount of $826.44 because the relevant geographical labor market was limited to the "Yucca area":
The applicant's loss of earning capacity cannot be adjusted downward because he continues to reside in Yucca where he lived and worked when he sustained his industrial injury or because he has not voluntarily chosen to expand his job search outside the Yucca area. Even assuming there are jobs suitable for the applicant in either Kingman or Lake Havasu, those jobs are beyond the applicant's relevant labor market and are not, therefore, reasonably available.
Kelly timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (1995), and
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