Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-1044, Arizona Revised
Statutes, is amended to read:
START_STATUTE23-1044. Compensation for partial disability;
computation; definition
A. For temporary partial disability there shall be
paid during the period thereof sixty‑six and two‑thirds per cent of
the difference between the wages earned before the injury and the wages which
the injured person is able to earn thereafter. Unemployment benefits
received during the period of temporary partial disability and fifty per cent
of retirement and pension benefits received from the insured or self‑insured
employer during the period of temporary partial disability shall be considered
wages able to be earned. If employment
is available to the employee through the current employer but for the
misconduct of the employee, the wages that could have been earned from that
employment shall be considered as wages earned by the employee.
B. Disability shall be deemed permanent partial
disability if caused by any of the following specified injuries, and
compensation of fifty‑five per cent of the average monthly wage of the
injured employee, in addition to the compensation for temporary total
disability, shall be paid for the period given in the following schedule:
1. For the loss of a thumb, fifteen months.
2. For the loss of a first finger, commonly called
the index finger, nine months.
3. For the loss of a second finger, seven months.
4. For the loss of a third finger, five months.
5. For the loss of the fourth finger, commonly
called the little finger, four months.
6. The loss of a distal or second phalange of the
thumb or the distal or third phalange of the first, second, third or fourth
finger, shall be considered equal to the loss of one‑half of the thumb or
finger, and compensation shall be one‑half of the amount specified for
the loss of the entire thumb or finger.
7. The loss of more than one phalange of the thumb
or finger shall be considered as the loss of the entire finger or thumb, but in
no event shall the amount received for more than one finger exceed the amount
provided for the loss of a hand.
8. For the loss of a great toe, seven months.
9. For the loss of a toe other than the great toe,
two and one‑half months.
10. The loss of the first phalange of any toe shall
be considered equal to the loss of one‑half of the toe and compensation
shall be one‑half of the amount for one toe.
11. The loss of more than one phalange shall be
considered as the loss of the entire toe.
12. For the loss of a major hand, fifty months, or
of a minor hand, forty months.
13. For the loss of a major arm, sixty months, or of
a minor arm, fifty months.
14. For the loss of a foot, forty months.
15. For the loss of a leg, fifty months.
16. For the loss of an eye by enucleation, thirty
months.
17. For the permanent and complete loss of sight in
one eye without enucleation, twenty‑five months.
18. For permanent and complete loss of hearing in
one ear, twenty months.
19. For permanent and complete loss of hearing in
both ears, sixty months.
20. The permanent and complete loss of the use of a
finger, toe, arm, hand, foot or leg may be deemed the same as the loss of any
such member by separation.
21. For the partial loss of use of a finger, toe,
arm, hand, foot or leg, or partial loss of sight or hearing, fifty per cent of
the average monthly wage during that proportion of the number of months in the
foregoing schedule provided for the complete loss of use of such member, or
complete loss of sight or hearing, which the partial loss of use thereof bears
to the total loss of use of such member or total loss of sight or
hearing. In this paragraph, "loss of use" means a loss of
physical function of the affected member, sight or hearing. The
effect on an employee's ability to return to the employee's occupation at the
time of the injury shall not be considered in establishing the percentage of
loss under this section, except that if the employee is unable to return to the
work the employee was performing at the time the employee was injured due to
the total or partial loss of use, compensation pursuant to this section shall
be calculated based on seventy‑five per cent of the average monthly wage.
22. For permanent disfigurement about the head or
face, which shall include injury to or loss of teeth, the commission may, in
accordance with the provisions of section 23‑1047, allow such sum for
compensation thereof as it deems just, in accordance with the proof submitted,
for a period of not to exceed eighteen months.
C. In cases not enumerated in subsection B of this
section, if the injury causes permanent partial disability for work, the
employee shall receive during such disability compensation equal to fifty‑five
per cent of the difference between the employee's average monthly wages before
the accident and the amount which represents the employee's reduced monthly
earning capacity resulting from the disability, but the payment shall not
continue after the disability ends, or the death of the injured employee, and
in case the partial disability begins after a period of total disability, the
period of total disability shall be deducted from the total period of
compensation.
D. If the
employee is unable to return to or continue working in any employment after the
injury due to the employee's misconduct, the commission may consider the wages
the employee could have earned from that employment as representative of the
employee's earning capacity.
D. e. In
determining the amount which represents the reduced monthly earning capacity
for the purposes of subsection C of this section, consideration shall be given,
among other things, to any previous disability, the occupational history of the
injured employee, the nature and extent of the physical disability, the type of
work the injured employee is able to perform subsequent to the injury, any
wages received for work performed subsequent to the injury and the age of the
employee at the time of injury.
E. f. In
case there is a previous disability, as the loss of one eye, one hand, one foot
or otherwise, the percentage of disability for a subsequent injury shall be
determined by computing the percentage of the entire disability and deducting
therefrom the percentage of the previous disability as it existed at the time
of the subsequent injury.
F. g. For
the purposes of subsection C of this section, the commission shall, in accordance with the provisions of
section 23‑1047 when the physical condition of the injured employee
becomes stationary, shall
determine the amount which represents the reduced monthly earning capacity and
upon such determination make an award of compensation which shall be subject to
change in any of the following events:
1. Upon a showing of a change in the physical
condition of the employee subsequent to such findings and award arising out of
the injury resulting in the reduction or increase of the employee's earning
capacity.
2. Upon a showing of a reduction in the earning
capacity of the employee arising out of such injury where there is no change in
the employee's physical condition, subsequent to the findings and award.
3. Upon a showing that the employee's earning
capacity has increased subsequent to such findings and award.
G. h. The
commission may adopt a schedule for rating loss of earning capacity and
reasonable and proper rules to carry out the provisions of this
section. In all cases involving this section, except for cases under
subsection B of this section, or in cases involving a request pursuant to
section 23‑1061, subsection J for disability compensation, if any issue
is raised regarding whether the injured employee has suffered a loss of earning
capacity because of an inability to obtain or retain suitable work, the
following apply:
1. The employer or carrier may present evidence
showing that the inability to obtain suitable work is due, in whole or in part,
to economic or business conditions, or other factors unrelated to the
industrial injury. The injured employee may present evidence showing
that the inability to obtain suitable work is due, in whole or in part, to the
industrial injury or limitations resulting from the injury. The
administrative law judge shall consider all such evidence in determining
whether and to what extent the injured employee has sustained any loss of
earning capacity.
2. In cases involving loss of employment, the
employer or carrier may present evidence showing that the injured employee was
terminated from employment or has not obtained suitable work, or both, due, in
whole or in part, to economic or business conditions, or other factors
unrelated to the injury. The injured employee may present evidence
showing that such termination or inability to obtain suitable work is due, in
whole or in part, to the industrial injury or limitations resulting from the
injury. The administrative law judge shall consider all such
evidence in determining whether and to what extent the injured employee has
sustained any loss or additional loss of earning capacity.
H. i. Any
single injury or disability that is listed in subsection B of this section and
that is not converted into an injury or disability compensated under subsection
C of this section by operation of this section shall be treated as scheduled
under subsection B of this section regardless of its actual effect on the
injured employee's earning capacity.
J. For the
purposes of this section, "misconduct" means any of the following:
1. Absence
from work without either notice to the employer or good cause for failing to
give notice, repeated absence from work without good cause when warnings
regarding repeated absence have been received from the employer, frequent
absences from work without good cause, failure to return to work following an
authorized leave, vacation, sick leave or other leave of absence when the
failure is without permission from the employer or repeated failure without
good cause to exercise due care for punctuality or attendance in regard to the
scheduled hours of work established by the employer.
2. Impairment,
whether from the use of intoxicating liquor or the use of illegal drugs, on the
employer's premises or when reporting to work.
3. Failure
to pass or the refusal to take a drug test or alcohol impairment test
administered under chapter 2, article 14 of this title.
4. Assault
on another employee or repeated fighting, refusal to accept an assignment to
work at certain times or to perform certain duties without good cause, refusal
to follow the employer's reasonable and proper instructions or intentional
destruction of the employer's property.
5. Dishonesty,
material falsification of employment applications or other written documents
relating to obtaining or retaining employment, falsification of time records or
work records, theft or conversion of property of the employer.
6. Admission
of or conviction for any felony or crime that is related to the employer's
business or to the employment or that may have a substantial adverse effect on
the employer's interest, public relations or trust unless the employer had
actual knowledge of the admission or conviction at the commencement of the
employment.
7. Violating
without good cause any safety rule or any federal or state occupational safety
and health law, regulation or directive that is reasonably imposed and
communicated by the employer pursuant to Chapter 2, article 10 of this title. END_STATUTE
Sec. 2. Section 23-1047, Arizona Revised
Statutes, is amended to read:
START_STATUTE23-1047. Procedure for determining compensation
for partial disability and permanent total disability in cases not enumerated;
procedure for determining nonscheduled dependency and duration of compensation
to partial dependents in death cases
A. In cases of permanent partial disability under
section 23‑1044, subsection B, paragraph 22 and subsections C and F G, when the physical condition of the injured
employee becomes stationary, or in the case of permanent total disability not
enumerated in section 23‑1045, and under section 23‑1045,
subsection D, or in death cases under section 23‑1046, subsection B, the
employer or insurance carrier within thirty days shall notify the commission
and request that the claim be examined and further compensation, if any, be
determined. A copy of all medical reports necessary to make such determination
also shall be furnished to the commission. The employer or insurance carrier
may commence payment of a permanent disability award without waiting for a
determination under subsection B of this section.
B. Within thirty days after the commission receives
the medical reports, the claims shall be examined and further compensation,
including a permanent disability award, if any, determined under the
commission's supervision. If necessary, the commission may require additional
medical or other information with respect to the claim and may postpone the
determination for not more than sixty additional days. Any determination under
this subsection may include necessary adjustments in any compensation paid or
payable.
C. The commission shall mail a copy of the
determination to all interested parties. Any such party may request a hearing
under section 23‑941 on the determination made under subsection B of this
section within ninety days after copies of the determination are mailed.
D. Any person receiving permanent compensation
benefits shall report annually on the anniversary date of the award to the self‑insured
employer or insurance carrier all of the person's earnings for the prior twelve‑month
period. In the event the person fails to make such report the self‑insured
employer or insurance carrier shall notify the person that such report has not
been received and that payment of further benefits will be suspended unless
such report of earnings is filed within thirty days. After thirty days have
elapsed from the date of such notice, the self‑insured employer or
insurance carrier may issue a notice to the person suspending payment of
further benefits and no further payments need be made until such report of
earnings is filed.
E. Any person receiving permanent compensation
benefits from the special fund established by section 23‑1065 shall
report annually on the anniversary date of the award to the industrial
commission all of the person's earnings for the prior twelve‑month
period. In the event the person fails to make such report the industrial
commission shall notify the person that such report has not been received and
that payment of further benefits will be suspended unless such report of
earnings is filed within thirty days. After thirty days have elapsed from the
date of such notice, the industrial commission may issue a notice to the person
suspending payment of further benefits and no further payments need be made
until such report of earnings is filed. END_STATUTE
