Roach v. Industrial Com'n of Arizona

672 P.2d 175, 137 Ariz. 509
CourtArizona Supreme Court
DecidedOctober 26, 1983
Docket16380-PR
StatusPublished
Cited by8 cases

This text of 672 P.2d 175 (Roach v. Industrial Com'n of Arizona) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roach v. Industrial Com'n of Arizona, 672 P.2d 175, 137 Ariz. 509 (Ark. 1983).

Opinion

137 Ariz. 509 (1983)
672 P.2d 175

Garold D. ROACH, Petitioner,
v.
INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Asarco, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 16380-PR.

Supreme Court of Arizona, En Banc.

October 26, 1983.

*510 Spencer K. Johnston, Phoenix, for petitioner.

James A. Overholt, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Twitty, Sievwright & Mills by John F. Mills, Phoenix, for respondents employer and carrier.

FELDMAN, Justice.

Garold D. Roach (claimant) was injured in an industrial accident on November 30, 1978. An Industrial Commission award was affirmed by the court of appeals in a memorandum decision. (No. 1 CA-IC 2673, filed October 6, 1982.) The claimant now petitions this court for review, challenging the sufficiency of the award. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5, and Ariz.R.Civ.App.P. 23, 17A A.R.S. The issue presented for review is whether the findings of the Commission with respect to reduction of earning capacity are supported by substantial evidence. We hold that they are not.

Claimant was employed as a driller/driller's helper by ASARCO near Casa Grande, Arizona when he suffered an injury on November 30, 1978. At that time his average earnings were $1,250 per month. Claimant sustained injuries to his neck, left shoulder and right arm. He underwent surgery and was treated by several physicians before being discharged from treatment with a 10% general disability on April 7, 1980. He was left with physical disabilities which include global arm pains, muscle spasms and an occasional "locking" of the arm. The claimant unsuccessfully sought other employment with ASARCO but did not look for jobs with other employers in the area.

On May 7, 1980, claimant moved to Texas and began work as a dispatcher-clerk in his brother's paving business. He earned the minimum wage. On November 14, 1980, the Industrial Commission awarded the claimant $434.89 per month based on his unscheduled permanent partial disability resulting in a reduced earning capacity of 62.26%.

Roach's employment in Texas and unsuccessful subsequent attempts to find other work in Texas (Finding 10) were "reasonable efforts to secure suitable employment in the area of his residence." Dean v. Industrial Commission, 113 Ariz. 285, 287, 551 P.2d 554, 556 (1976). Thus, as both parties and the court of appeals have recognized, the burden shifts to the employer or carrier to show the availability of suitable employment. Id.

On February 3, 1981, the insurance carrier protested the award and requested a hearing. The tardiness of this request was never raised as an issue in the case. The hearing was held on June 25, 1981.

*511 The findings of the administrative law judge which are at issue in this case were largely drawn from the testimony of a vocational consultant retained by the employer. The consultant personally conducted a "labor market survey" in the area around Casa Grande. She obtained no response from two Texas agencies that she contacted.[1] The predicate for the survey was based upon information obtained from the claimant and two of his treating physicians. The consultant testified concerning several "occupational availabilities" and supplied estimates of the number of openings or rates of turnover for at least four jobs. One such job was that of correctional service officer (CSO) at the Arizona State Prison at Florence. There had been 471 openings for this position between March, 1980 and March, 1981.

The administrative law judge concluded that the survey indicated "job availabilities [for the CSO position] to at least $962.58 per month" (Finding 15) and reduced claimant's lost earning capacity accordingly. Based upon the presumed earnings for the CSO position, the award recognized only a 22.99% reduction of earning capacity. Claimant sought review.

The court of appeals affirmed the Industrial Commission's award. The court clearly annunciated the correct legal test for such cases. That test has two parts: "that [1] there is employment reasonably available [2] which the claimant could reasonably be expected to perform, considering his physical capabilities, education and training...." Germany v. Industrial Commission, 20 Ariz. App. 576, 580, 514 P.2d 747, 751 (1973). The court determined that the record contained "substantial evidence" to meet this test. After reviewing the record, we cannot agree.

Over 20 years ago this court stated that it would, and on at least eight occasions had, set aside an Industrial Commission award not supported by "competent evidence." Allen v. Industrial Commission, 87 Ariz. 56, 66, 347 P.2d 710, 717 (1959). The problem of formulating or applying the legal test to determine what constitutes "substantial" or "competent" evidence on the record in reviewing Industrial Commission awards has continued as a major issue in disputes over determination of lost earning capacity. See, e.g., Dean, supra; Sproul v. Industrial Commission, 91 Ariz. 128, 370 P.2d 279 (1962); Le Duc v. Industrial Commission, 116 Ariz. 95, 567 P.2d 1224 (App. 1977); La Rue v. Industrial Commission, 20 Ariz. App. 498, 514 P.2d 251 (1973). Because of recurrent problems concerning the nature of the "substantial evidence" needed to support an award regarding lost earning capacity, we granted review to clarify the issue.

In meeting the two-pronged test of Germany, supra, findings of the Industrial Commission are deemed to be based on substantial evidence when (1) the job requirements (of the suggested job upon which the award is calculated) are related to the claimant's disability, education and training with specificity, Dye v. Industrial Commission, 23 Ariz. App. 68, 530 P.2d 914 (1975) (Jacobson, J. concurring), and (2) the reasonable availability of the job upon which the award is calculated is demonstrated with at least express reference to the impaired worker's ability to compete for that job and the likelihood that the potential employer will hire someone with a previous disability. Dean, 113 Ariz. at 287, 551 P.2d at 556. "Abstractions are not sufficient." Dye, supra, 23 Ariz. App. at 72, 530 P.2d at 918, quoted in Zimmerman, 137 Ariz. at 582, 672 P.2d at 926.

In Zimmerman, we examined and approved the legal principles which had been postulated in Germany, Dean and Dye, holding that the ultimate issue is to determine whether there is a probability that despite his residual physical impairments the injured worker can sell his services with regularity in a competitive labor market. *512 Applying that test to the Zimmerman facts, we held that evidence which established only that the claimant would be one out of eleven qualified applicants for a single position was insufficient to meet the test.

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672 P.2d 175, 137 Ariz. 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roach-v-industrial-comn-of-arizona-ariz-1983.