I recently litigated a claim at the Court of Appeals that had to do with Arizona's "Equal Measure Rule" as set forth in the Elias v. Industrial Comm'n case. That case says that the same measure of hours used to calculate the injured worker's pre-injury average monthly wage should be used to calculate their post injury earning capacity. In short, a worker who worked less than full time before their injury shouldn't be measured using full time hours after.
In my case, when we litigated average monthly wage, the carrier argued vehemently that my client worked less than full-time, or 31 hours per week to be exact. The judge agreed and set the wage based on 31 hours per week. However, when we got to the LEC (loss of earning capacity) stage, the carrier argued that he was a full time employee, and that therefore his post injury earning capacity should be based on 40 hours per week. The ICA judge applied (correctly, I believe) the "equal measure rule" and found that the post injury earning capacity should be based on the same number of hours as the average monthly wage. The carrier appealed.
At the Court of Appeals, I tried to point out to the justices that "full time" and "part time" work defy an exact description. For example, is 38 hours a week "part time" work? Is 29 hours "part time"? At exactly what point does full time work become part time and vice versa? My argument is that using the exact number of hours worked pre-injury as worked post injury is the most exact way of giving "equal measure". The justices disagreed, however, and would have us continue clumsily trying to pigeonhole workers into either a 40 hour week or a 20 hour week, with no flexibility for any other circumstances. Bad decision made by otherwise very smart lawyers who know very little about workers compensation law.
Chad T. Snow is a work injury lawyer with the firm Snow, Carpio, & Weekley. With offices throughout Arizona, he can be reached through the firm's website at www.snowcarpio.com
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