Court: Court of Appeals of Arizona; January 15, 1974; Arizona; State Appellate Court
The review by certiorari concerns an award from the Industrial Commission regarding the petitioner's workmen’s compensation claim, focusing on whether there was reasonable evidence to support the Commission's finding that the petitioner did not suffer a reduction in earning capacity due to his industrial injury. The petitioner, a journeyman millwright who injured his back in 1969, reached a stable condition by September 1971, with a general functional impairment of 10. Although his doctor did not indicate that he was unable to perform millwright duties, the petitioner asserted he could not handle the heavy work available locally, though he believed he could align lighter machinery. With 22 years of experience in the trade, including roles as a millwright foreman and superintendent, the petitioner returned to work briefly as a journeyman millwright post-injury before quitting due to job demands. Subsequently, he worked as a millwright foreman for over 13 months until April 1972, shortly before the formal hearing on his claim. The Commission initially found no loss of earning capacity, noting that millwright foremen earn approximately 10% more than journeyman millwrights. The hearing officer determined the petitioner did not prove a loss of earning capacity, and the petitioner argues that his injury inherently reduced his job market by eliminating his ability to work in his previous trade, which he believes should constitute a loss of earning capacity.
Petitioner presented evidence indicating that he operates out of a union hall where there is no distinction in job classification between journeyman millwrights and millwright foremen. When a millwright’s name reaches the top of the union list, he is dispatched to the next available job, regardless of the position required. Petitioner anticipated ascending the list and being called for work within two weeks of the hearing, with the ability to refuse two job offers without penalty; refusal of a third would result in his name dropping to the bottom of the list. He argued that the typical staffing structure, with ten millwrights under each foreman, diminished his future employment opportunities, warranting a loss of earning capacity award.
Arizona law permits consideration of post-injury wages in evaluating a claimant’s loss of earning capacity, even when the new position differs from the previous occupation. Despite an increase in his post-injury earnings as a millwright foreman, petitioner contended that he faced potential future employment challenges as a foreman, asserting a loss in earning capacity. However, it was noted that he was unemployed at the hearing, similar to periods of being "between jobs" prior to his injury.
The hearing officer evaluated factors from A.R.S. 23-1044, including petitioner’s prior supervisory experience, his post-injury work, and his earnings, concluding there was no demonstrated loss of earning capacity. While acknowledging petitioner’s concerns about future employment, it was emphasized that he could seek to reopen his claim if his earning capacity were to decline due to injury-related conditions. The decision referenced the Arizona Supreme Court’s ruling in Maness v. Industrial Commission, which allows for reopening claims under certain circumstances.
Petitioner relied heavily on the Shroyer v. Industrial Commission case, claiming its facts were analogous. However, distinctions in the situations led to the conclusion that Shroyer did not necessitate a similar loss of earning capacity award in this case.
In the case of Shroyer, evidence indicated that a significant part of the petitioner’s pre-injury work did not involve supervisory responsibilities, contrasting sharply with the petitioner’s pre-injury occupational history. Shroyer’s post-injury supervisory role lasted only five months and was nearing completion, while the petitioner served over 13 months as a foreman post-injury. These distinctions, though individually minor, collectively create a different context for the hearing officer's evaluation. The Arizona Supreme Court found that the hearing officer in Shroyer based his determination of loss of earning capacity solely on the wages earned at the hearing, which is not applicable in this case. The hearing officer here thoroughly assessed the factors outlined in A.R.S. 23-1044 D and concluded that the petitioner failed to demonstrate a loss in earning capacity. The complexity of determining a disabled workman's earning capacity is acknowledged, and the hearing officer is expected to consider both statutory and relevant factors in making a reasoned decision. The decision made by the hearing officer is upheld as it is supported by reasonable evidence. The award is affirmed, with concurrence from JACOBSON, C. J., and EUBANK, J.
