Schuck & Sons Construction v. Industrial Commission

138 P.3d 1201, 213 Ariz. 74, 483 Ariz. Adv. Rep. 29, 2006 Ariz. App. LEXIS 84
CourtCourt of Appeals of Arizona
DecidedJuly 27, 2006
DocketNo. 1 CA-IC 05-0058
StatusPublished
Cited by10 cases

This text of 138 P.3d 1201 (Schuck & Sons Construction v. Industrial Commission) 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
Schuck & Sons Construction v. Industrial Commission, 138 P.3d 1201, 213 Ariz. 74, 483 Ariz. Adv. Rep. 29, 2006 Ariz. App. LEXIS 84 (Ark. Ct. App. 2006).

Opinion

OPINION

BARKER, Judge.

¶ 1 Petitioner Employer Schuck & Sons Construction (“Schuck”) filed this special action to appeal an Industrial Commission of Arizona (“ICA”) decision affirming its earlier decision finding Daniel Bojko (“Bojko”) to have an unscheduled permanent partial disability entitling him to an award of $536.57 per month.1 Schuck argues that the Administrative Law Judge (“ALJ”) erred by failing to consider Bojko’s self-employment earnings when determining his post-injury earning capacity.2 We reverse and remand for further proceedings consistent with this decision.

Factual and Procedural History

¶ 2 While employed as a framing carpenter with Schuck, Bojko was injured on November 30, 1998 when a four-hundred pound beam fell from a forklift and struck his neck. At the time of the injury, Bojko also owned and was “engaged” in a business, D & D Builders (“D & D”). However, the record is unclear as to Bojko’s level of involvement in the business and whether the business had any revenue in 1998.

¶ 3 As a result of the injury, Bojko underwent neck surgery but continues to experience back pain and a decreased range of motion in his neck. Bojko takes pain medication that causes him to “space out” and is subject to limitations on lifting and the number of hours he can work each day.

¶ 4 Bojko’s workers’ compensation claim was accepted for benefits, and on December 17, 1998, Schuck recommended an average monthly wage of $2,100.00, the statutory maximum, based on Bojko’s annual salary of $32,480.76. Any earnings Bojko may have had from D & D were not considered. The ICA adopted Schuck’s recommendation, and on January 15, 1999, issued a notice of average monthly wage in the amount of $2,100.00. This figure is not in dispute.

¶ 5 Effective May 15, 2002, Schuck closed the claim with an unscheduled permanent partial impairment and a supportive care award. On October 2, 2002, the ICA concluded that Bojko suffered an unscheduled permanent partial disability resulting in a 14% general physical functional disability and a 10.62% loss of earning capacity, entitling him to $122.62 per month. Bojko timely protested that he had sustained a greater loss of earning capacity.

¶ 6 After hearing,3 the ALJ ruled that the “equal measure rule” precluded consideration of post-injury self-employment earnings from D & D when determining Bojko’s earning capacity because self-employment earnings from D & D were not considered when establishing Bojko’s average monthly wage. The ALJ reasoned:

4. An Applicant’s loss of earning capacity must be measured by the same standard as the average monthly wage on the date of injury. Whyte v. Industrial Comm’n, 71 Ariz. 338, 344, 227 P.2d 230, 233 (1951).
16. Based upon [the] equal measure doctrine as outlined in Whyte, supra and Elias [v. Industrial Commission, 175 Ariz. 507, 858 P.2d 652 (1992) ], the same standard in calculating Applicant’s average monthly wage should be used in calculating Applicant’s loss in earning capacity. The undersigned finds that Applicant’s self employment for D & D Construction should not be used in determining [sic] his current loss in earning capacity. Further based upon Faulkner v. Industrial Commission, [77]*7771 Ariz. 76, 223 P.2d 905 (1950), it was appropriate not to include Applicant’s concurrent self employment with any determination of his average monthly wage at the time of the 1998 industrial injury.

¶ 7 The ALJ found a 46.45% loss of earning capacity entitled Bojko to $534.57 per month in permanent benefits. The ALJ explained his conclusion:

With respect to jobs Applicant would be able to perform, in the open and competitive labor market that would be available and suitable to him, that of a gate guard as outlined by Mr. Kelman is the most appropriate. The undersigned also concludes, using the reasoning from Dr. Barranco’s testimony that Applicant may be able to work up to six hour[s] per day and 30 hours work week [sic]. Mr. Kelman indicated that a rollback wage of $8.65 per hour is appropriate for the gate guard position. At 30 hours a week, that translates to a loss in earning capacity of $975.59 which equals an entitlement of $536.57 per month in permanent benefits and a 46.45% loss in earning capacity.

¶ 8 Schuek protested that the ALJ erred by failing to consider Bojko’s self-employment earnings from D & D when determining his earning capacity. On review, the ALJ affirmed and supplemented the earlier decision. The ALJ again found a 46.45% loss of earning capacity, based on work as a gate guard, entitled Bojko to $536.57 per month based on a 30-hour work week.

¶ 9 The revised decision affirmed the exclusion of self-employment earnings based on the equal measure rule. It also supplemented the earlier decision with alternative grounds for excluding self-employment earnings from the determination of earning capacity.

¶ 10 The ALJ, quoting Mail Boxes, etc. v. Industrial Commission, 181 Ariz. 119, 123, 888 P.2d 777, 781 (1995), stated the rule that a sole proprietor’s average monthly wage is “measured by the market value of services rendered.” The ALJ then reasoned that because “both labor market consultants agreed that applicant’s position at D & D Builders [was] not available in the open and competitive labor market,” the market value of the labor' Bojko performed for D & D could not be ascertained and therefore the position could not “be used as a measure of applicant’s earning capacity.” The decision also excluded self-employment earnings based on the ALJ’s conclusion that these were business profits that would inappropriately characterize Bojko’s earning capacity and using profit from only one year would result in endless litigation by prompting continuous petitions for rearrangement.4

¶ 11 Schuek timely filed this special action. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rule of Procedure for Special Actions 10.

Standard of Review

¶ 12 This court deferentially reviews factual findings of the ICA but independently reviews its legal conclusions. PFS v. Indus. Comm’n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997). Reasonably supported factual findings will be affirmed, even if we disagree with them. Id.; Micucci v. Indus. Comm’n, 108 Ariz. 194, 195, 494 P.2d 1324, 1325 (App.1972).

¶ 13 We construe the Workers’ Compensation Act liberally in order to effectuate its remedial purpose. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App.2003). When an ICA award is set aside, for any reason, it must usually be set aside in its entirety. Felix v. Indus. Comm’n, 193 Ariz. 152, 155 n. 2, ¶ 15, 971 P.2d 199, 202 n. 2 (App.1998).

[78]*78 Discussion

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Bluebook (online)
138 P.3d 1201, 213 Ariz. 74, 483 Ariz. Adv. Rep. 29, 2006 Ariz. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schuck-sons-construction-v-industrial-commission-arizctapp-2006.