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Postinjury employment doesn't limit increase in benefits
In Arizona, a worker's benefits award may be rearranged on the basis of any change, physical or otherwise, that is related to the worker's earning capacity.
Case name: Jim Click Auto Mall and Harco National Insurance Co. v. Industrial Commission of Arizona and Larson, No. 2 CA-IC 2008-0008 (Ariz. Ct. App. 08/17/09, unpublished). Ruling: In an unpublished decision, the Arizona Court of Appeals upheld a finding that the worker was entitled to a rearrangement of his permanent workers' compensation benefits.
Summary: The worker sustained a compensable back injury while working for the employer, a car dealership. His earnings were partially based on commissions, but due to his modified work capacity, his commissions began to drop. He was terminated and secured employment with another car dealership, but was laid off due to economic conditions. After accepting a lower-paying store job, the worker filed a petition for rearrangement of his benefits. He argued that his earning capacity had been reduced and that but for his injury, he would have qualified for a number of different positions. He further argued he searched for new jobs with comparable salaries but was unable to find any, due in part to his physical limitations. The employer argued the worker retained the ability to perform the functions of his job within his work restrictions and thus was not limited by his back injury. It also argued the worker's reduction in earning capacity resulted from his layoff from the second job. The Arizona Court of Appeals rejected the employer's argument, noting that while termination reasons that are unrelated to the worker's on-the-job injury (e.g., layoffs, strikes, economic conditions) may become significant where the evidence demonstrates they are more important than the injury, in this case the worker had sufficiently demonstrated he was unable to find work due in part to his back injury. The court also determined that the worker's postinjury jobs were "sheltered work" and should not be used to determine his wage-earning capacity. Sheltered work results when an employer retains an injured worker at his previous wages despite a disability. The worker's postinjury work for the employer was sheltered because it was offered as an accommodation for his work restrictions. There was also evidence that his job at the second dealership was created for him and did not exist in the general labor market, the court determined. Read more at the WORKERSCOMP ForumTM homepage. September 16, 2009 Copyright 2009© LRP Publications |
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