Wells v. Industrial Commission

632 P.2d 558, 129 Ariz. 471, 1981 Ariz. App. LEXIS 484
CourtCourt of Appeals of Arizona
DecidedJuly 30, 1981
DocketNo. 1 CA-IC 2395
StatusPublished
Cited by2 cases

This text of 632 P.2d 558 (Wells 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
Wells v. Industrial Commission, 632 P.2d 558, 129 Ariz. 471, 1981 Ariz. App. LEXIS 484 (Ark. Ct. App. 1981).

Opinion

WREN, Chief Judge.

Petitioner has brought this special action to challenge an award entered by the Industrial Commission which granted his petition for rearrangement or readjustment of compensation and increased his permanent partial disability benefits. He contends that the increase was inadequate and not supported by the evidence, since the respondent employer and respondent carrier failed to show that employment was available to petitioner in certain named occupations in direct competition with able-bodied applicants.

On September 25,1975, petitioner injured his back while employed as a dairy products mixer-operator by respondent employer. His workmen’s compensation claim was accepted for benefits by the carrier. On October 14, 1977, the Commission, following various proceedings, ultimately entered an award finding that petitioner had sustained a 15% general physical functional disability and had suffered a 17.05% reduction in earning capacity, entitling him to the sum of $78.40 per month. On May 17, 1979, petitioner filed a petition for rearrange[472]*472ment or readjustment. The petition was denied and a request for hearing followed. At the hearing, held on November 29, 1979, petitioner, his attending orthopedic surgeon, a psychiatrist, an employment expert and three lay witnesses testified.

On December 20, 1979, the hearing judge granted the petition, determining that petitioner had a 22.29% reduction in earning capacity, and awarding him an increase in permanent partial disability benefits from $78.40 per month to $102.48. This figure was based on a “rolled back” wage of $649.50 as an “electronic sub-assembler” or “cable connector assembler.” Petitioner thereafter filed this appeal.

In the prior award of October, 1977, the hearing judge had determined that the petitioner, because of the restrictions placed upon him by his attending physician, Ray Fife, M.D. could not lift over ten pounds, could not perform tasks requiring any continuous lifting or bending, could not walk a distance in excess of one-half mile, could not stand for more than one-half hour, could not sit for more than three hours and needed to change positions frequently. Petitioner was, however, found capable of continuing to perform the work of mixer-operator in a lighter trade than he had performed prior to his accident. This finding was premised upon the testimony of Frederick E. Brick, a vocational expert, who stated that employment was then available for petitioner as a mixer-operator at several different companies which Brick named.

Following the 1977 award petitioner testified that he continued his efforts to seek employment by contacting the prospective employers indicated by Brick, but that he was unsuccessful. As a result of his inability to obtain work, he filed the petition for rearrangement under review here.

In the November 1979 hearing Brick again testified for the respondents. On this occasion, however, he expressed the opinion that petitioner could no longer perform the job mixer-operator since the companies in that business had increased their lifting requirements. However, he opined that petitioner would be able to perform adequately in three types of occupations: (1) electrical mechanical assembler (2) cable connector assembler, and (3) electric sub-assembler, indicating that he had in fact contacted various firms which he identified, and inquired as to whether they would hire someone with the physical limitations of petitioner and the specific restrictions which Dr. Fife had placed upon him. These firms, according to Brick, had responded that they would.

Petitioner argues, however, that this proof was inadequate to establish reasonable employment opportunities, Employers Mutual Liability Insurance Company of Wisconsin v. Industrial Commission, 25 Ariz.App. 117, 541 P.2d 580 (1975), in that it did not include evidence that petitioner could secure such employment notwithstanding competition from able-bodied persons. Dean v. Industrial Commission, 113 Ariz. 285, 551 P.2d 554 (1976). Petitioner further argues that the hearing judge erred in the following ruling on the issue of competition:

Q. Isn’t it true that you did not ask this individual at Talley Industrial that if he had an applicant with the disabilities or restrictions such as with a ten-pound lifting restriction, and if he also had an applicant for the same job who had no disability, that he would equally hire the man with the disabilities as the man without the disabilities; isn’t that true? You didn’t ask that?
A. No.
Q. Isn’t it true that you didn’t ask that question to any of the persons you talked with?
MR. MARKS: I would object on the grounds that is legally irrelevant. The Dean case states that one of the things that has to be considered in an LEC case is whether a prospective employer will hire someone with the type of impairment that’s involved in the case. It does not state that it must be established that the company would hire that individual in preference to any other type of individual.
MR. VAN BAALEN: I said “equally.” What the Dean case is is in a competitive situation with a fully able-bodied man; that he would just as readily hire the [473]*473disabled man as a fully able-bodied man. That is exactly what the Dean case says and other cases.
MR. MARKS: I think the Hearing Officer can read the case for herself.
THE HEARING OFFICER: I’ll sustain the objection.
R.T. November 29,1979 at pages 133-134.

Quoting from Davis v. Industrial Commission, 82 Ariz. 173, 309 P.2d 793 (1957), our Supreme Court stated in Dean v. Industrial Commission, supra, the general proposition that:

“[t]he object is to determine as near as possible whether in a competitive labor market the subject in his injured condition can probably sell his services and for how much. To support a finding in this respect the commission must have evidence that will at least demonstrate the reasonableness of the determination made.” id. 113 Ariz. at 287, 551 P.2d at 556.

Then, with reference to the facts before it, Dean noted:

The evidence fails to show that petitioner would be successful in obtaining a pest control position. Material evidence to show, with reasonable certainty, that a claimant could secure a position would include, but is not limited to, the competition for available positions, Hughes v. Industrial Commission, 3 Ariz.App. 51, 411 P.2d 474 (1966), and the likelihood that employers will hire someone with a previous disability although he is now fully qualified to perform the work. Without any evidence in this regard, the Commission’s finding is unreasonable, id.

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Related

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672 P.2d 175 (Arizona Supreme Court, 1983)
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Bluebook (online)
632 P.2d 558, 129 Ariz. 471, 1981 Ariz. App. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-industrial-commission-arizctapp-1981.