D'AMICO v. Industrial Com'n of Arizona

717 P.2d 943, 149 Ariz. 264, 1986 Ariz. App. LEXIS 451
CourtCourt of Appeals of Arizona
DecidedApril 3, 1986
Docket1 CA-IC 3378
StatusPublished
Cited by11 cases

This text of 717 P.2d 943 (D'AMICO v. Industrial Com'n of Arizona) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'AMICO v. Industrial Com'n of Arizona, 717 P.2d 943, 149 Ariz. 264, 1986 Ariz. App. LEXIS 451 (Ark. Ct. App. 1986).

Opinion

OPINION

JACOBSON, Presiding Judge.

This is a special action review of an Industrial Commission award denying all permanent disability benefits after the petitioner (claimant) failed to make a good faith effort to find suitable work. The issues presented are (1) whether reasonable evidence supports the finding of this failure; and (2) whether a good faith effort is a substantive requirement for permanent disability benefits. Although ample evidence supports the factual finding, we set aside the award, because it is substantively incorrect.

On February 16, 1983, the claimant injured his back at work while lifting a cabinet. The claimant, then 62 years old, had worked as a cabinet maker all his working life. Compensability was accepted. The claimant received conservative medical treatment, but this failed to relieve his symptoms of back pain and radiating leg pain and numbness. The claimant refused the option of surgery. It is not asserted that this refusal was unreasonable. The claimant was then discharged with a 10% permanent impairment, which restricted him to light work only.

The Industrial Commission issued its initial, permanent, partial disability award, finding that the claimant was unable to return to his prior employment, but was capable of working as a product assembler. The award relied on a labor market survey that concluded these positions paid $5.46 per hour when the claimant was injured. The claimant protested this award, and a hearing was scheduled. Both the claimant and the carrier timely requested subpoenae for labor market consultants. The carrier’s consultant was, however, unable to appear at the scheduled hearing.

The hearing proceeded as scheduled. The claimant testified concerning his symptoms and residual limitations, as well as his job search. He admitted he spent only two days looking for work and that he searched for jobs only because he was told to do so. Furthermore, he confined his search to jobs that were admittedly unsuitable. The claimant also registered with the Department of Economic Security.

The claimant’s consultant, a “recognized expert,” testified that the medical limitations precluded the claimant from returning to work as a cabinet maker but did not totally incapacitate him. He was capable of light, sedentary work. The consultant agreed that product assembly work was suitable and reasonably available. He disagreed, however, that the claimant could have earned $5.46 per hour. In his opinion, given the claimant’s inexperience, he could have earned only the minimum wage ($3.35 per hour). He explained the discrepancy as follows:

*266 5.46 per hour is a composite of a survey indicating the entry level wage and the maximum level wage paid, to include longevity and various factors, and I believe it went upwards of $10 per hour, and this $5.46 per hour was an average rate which was arrived at by adding all of the entry level wages or experiential wages and dividing by the number of factors there were.

At the close of the hearing, the carrier renewed its request to have its labor market consultant testify, representing that its consultant would indicate the claimant was capable of earning above the minimum wage. The administrative law judge reserved his decision regarding the necessity of this witness and subsequently issued his award without a further hearing. He found that the claimant had failed to make a good faith effort to obtain suitable work, and that this failure precluded a permanent, partial disability award. After af-firmance on administrative review, this special action followed.

On review, the claimant first argues that he made a good faith effort to obtain work. This argument misstates the evidentiary issue. The question is whether there is reasonable evidence to support the administrative law judge’s contrary finding as to this fact. Arrowhead Press, Inc. v. Industrial Commission, 134 Ariz. 21, 653 P.2d 371 (App.1982). Our standard of review requires us to view the evidence in a light favorable to the administrative law judge’s findings. Atkison v. Industrial Commission, 26 Ariz.App. 6, 545 P.2d 968 (1976).

In the present case, ample evidence supports the disputed finding. The claimant made nothing more than a token effort to find work. Furthermore, this token effort was calculated to fail. The only jobs that the claimant sought were unsuitable. Indeed, the claimant admitted he did not want to do any work other than cabinet making.

The claimant next argues that he may receive permanent disability benefits without making a good faith effort to find suitable work. We agree. One recent court of appeals case analyzes the governing principles as follows:

A failure of the injured workman to make a good faith and reasonable effort to secure work may support a finding that the industrial injury is not the cause of the employee’s loss of earnings. See, e.g., Schnatzmeyer v. Industrial Commission, 77 Ariz. 266, 270 P.2d 794 (1954). Also, the burden of going forward with the evidence in a loss of earning capacity hearing does not shift to the employer if the injured employee fails to prove he has made a good faith and reasonable effort to find other work. See, e.g., Wiedmaier v. Industrial Commission, 121 Ariz. 127, 589 P.2d 1 (1979), and cases cited therein.
However, Arizona’s statutory scheme does not require that a claimant always prove his reduced earning capacity by showing an unsuccessful good faith effort to obtain suitable employment. A claimant may meet his burden of proof by relying upon expert testimony to show the type of work the claimant is able to perform with his industrial injuries, and the amount which would be earned in such employment. Such evidence could satisfy the claimant’s duty to mitigate his damages. Hoffman v. Bro-phy, 61 Ariz. 307, 149 P.2d 160 (1944).

Franco v. Industrial Commission, 130 Ariz. 37, 39, 633 P.2d 446, 448 (App.1981). Accord United Riggers Erectors v. Industrial Commission, 131 Ariz. 258, 640 P.2d 189 (App.1981); Felker v. Industrial Commission, 134 Ariz. 19, 653 P.2d 369 (App.1982) (dictum).

The administrative law judge concluded, as the respondents asserted, that these authorities represent a narrow exception to the general rule requiring a good faith effort to obtain employment. Indeed, this argument contends the Arizona Supreme Court cases contradict a broad interpretation of our opinions in the cases cited above. We disagree. Those cases differ factually from the instant case. Franco

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Bluebook (online)
717 P.2d 943, 149 Ariz. 264, 1986 Ariz. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damico-v-industrial-comn-of-arizona-arizctapp-1986.