What Do You Think: Did Custodian’s Shoulder Improve Enough to Change Earning Capacity?

Frank Ferreri

Phoenix, AZ (WorkersCompensation.com) – When multiple doctors think a worker’s condition has improved, does that warrant a legal change to her loss of earning capacity?

It could, but as an Arizona court recently explained, it depends on who gets to have the “credible” word about the worker’s condition.

A school district custodian fell while working and experienced a shoulder injury. Her doctor concluded that she could not return to her job and recommended work restrictions.

Following this, a vocational consultant provided a loss of earning capacity recommendation, noting that the custodian would be capable of performing “unskilled, entry-level work, part-time” such as working in fast food. Based on the custodian’s restrictions, the consultant concluded that she was entitled to permanent partial disability benefits of $1,019.54 per month.

Based on this assessment, the Industrial Commission of Arizona awarded the custodian the recommended amount. Later, the consultant amended her assessment, concluding that the custodian could perform housekeeping work for “a hotel/motel” establishment. In this revision, the consultant calculated the recommended benefits to be between $629.77 and $746.07 per month.

Several years later, the district’s surveillance observed the custodian doing exercises involving her shoulder, so it required the custodian to undergo an examination. Based on this doctor’s evaluation, the commission rearranged the custodian’s loss of earning capacity to zero, prompting the custodian to appeal.

Another doctor concluded that the custodian didn’t need work limitations but a third disagreed, explaining that while the custodian “had a fair bit of improvement,” it would be unsafe for her to work as a custodian.

After the hearing, the commission denied the rearrangement, concluding that there had been no change in the custodian’s earning capacity as the result of any change in her physical condition or an increase in her earning capacity. The district then appealed to court, arguing that the medical evidence supported the case for adjusting the custodian’s compensation downward.

An employer or its carrier can petition for a rearrangement or readjustment of disability compensation in Arizona if the employee’s physical condition has changed to the point that it results in an increase of earning capacity.

Did the custodian’s condition improve to the point of increasing her earning capacity?

A. Yes. Two doctors found that the custodian’s condition improved to the point where she didn’t need limitations, so her improved condition increased her earning capacity.

B. No. It was acceptable for the commission to rely on the doctor’s conclusion that it would be unsafe for the custodian to return to her pre-injury work.

If you selected B, you agreed with the court in Phoenix Union High School District No. 210 v. Arizona School Alliance for Workers Compensation Inc., No. 1 CA-IC 20-0019 (Ariz. Ct. App. 12/22/20, unpublished), which held that “reasonable evidence” supported the commission’s conclusion that the there had been no change in the custodian’s physical condition resulting in an increase in her earning capacity.

Although the doctors disagreed on the custodian’s condition, the court explained that the commission didn’t make a mistake by crediting one as more credible than the others.

“We must defer to the [commission’s] weighing of the evidence and credibility determinations,” the court explained, rejecting the district’s assertions that there were “foundational flaws” in that doctor’s testimony.

Ultimately, however, the district ended up getting a favorable result as the court determined that the award should have been revised to $746.07 per month after the consultant changed her recommendation regarding the custodian’s loss of earning capacity.

This feature does not provide legal advice.

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