NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

PATRICIA IBARRA, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

OLIVE GARDEN RESTAURANT, Respondent Employer,

LIBERTY MUTUAL INSURANCE CORPORATION, Respondent Carrier.

No. 1 CA-IC 20-0005

Special Action - Industrial Commission

ICA Claim No. 20162-66085

Carrier Claim No. WC608C68215

The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Snow Carpio & Weekley, PLC, Phoenix

By Erica Rose Gonzalez-Melendez

Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini 

Counsel for Respondent

FILED 10-1-2020
IBARRA v. OLIVE GARDEN/LM INS

Decision of the Court

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Lundmark Barberich LaMont & Slavin, PC, Phoenix

By Lisa M. LaMont

Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Petitioner Patricia Ibarra challenges an award issued by the 

Industrial Commission of Arizona ("ICA") that found she had a 1.32% loss

of earning capacity after a work-related injury. She alleges error in the 

formula used by the ICA and proposes a different formula based on Whyte 

v. Indus. Comm'n, 71 Ariz. 338 (1951), which held that earnings in 1949 were 

not a reasonable basis for computing lost earning capacity from an injury 

that happened in 1942. We are not persuaded that Ibarra provided 

adequate evidence to invoke the Whyte comparison. We, therefore, affirm 

the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Ibarra has worked for Olive Garden since 2007. She worked 

in the kitchen as a pasta cook and line cook for years until she was injured 

and diagnosed with work-related bilateral wrist injuries in 2016. After she 

had surgery on her right wrist, she was medically released back to work,

restricted to light duty, and was told to avoid forceful gripping. Olive 

Garden put her to work as a hostess, which she has continued since 2017.

As a cook, she was making $13.15 per hour. She began earning $13.00 an 

hour upon moving to the hostess position in 2017. By the date of the 

hearing, she had received two raises and was making $13.70 per hour.

¶3 Ibarra's claim was closed in March 2018, with a 3% permanent 

impairment for each wrist. The ICA claims division found that she had no 

loss of earning capacity, and Ibarra requested a hearing before an 

administrative law judge ("ALJ") to contest that finding.
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¶4 The parties agree that Ibarra's wage at the time of injury was 

$13.15 per hour,

1 and that her current wage as a hostess is $13.70 per hour. 

For purposes of this case, they also agree that she works an average of 30 

hours per week. The ALJ heard from Ibarra and two labor market 

consultants. Ibarra testified that she still experiences pain in her arms but 

continues to work. She speaks Spanish, almost exclusively, and 

understands only a little English, which makes it hard for her to work as a 

hostess.

2 She testified that for much of her time working as a hostess, she 

had not performed all of the hostess duties due to her limited English. One 

of her primary activities was to roll up silverware in napkins for placement 

on tables. 

¶5 The testimony of Ibarra's labor market consultant, Nolan 

McKelvey, focused on a dispute over the average hours per week that 

Ibarra worked as a hostess. After the hearing, Ibarra conceded that she

averaged 30 hours of work per week, making much of McKelvey's

testimony immaterial. McKelvey did not explain why he used the numbers 

he used for computing loss of earning capacity. McKelvey's testimony and 

written report make clear, however, that he used the 2016 minimum wage 

as Ibarra's post-injury wage in computing her loss of earning capacity 

because hostess positions start at minimum wage. Based on a generic 

minimum wage calculation, McKelvey determined that Ibarra suffered a 

lost earning capacity of about 38%, or $646.23 of her $1,692.65 average 

monthly wage. Ibarra asserts that it is necessary to use the wages of a 

hostess to calculate her loss of earning capacity because work restrictions 

prevent her from returning to her prior occupation as a cook. 

¶6 Respondents' labor market consultant, Diane Nayhouse,

testified that she calculated a 1.32% loss of earning capacity by comparing 

Ibarra's pre-injury hourly wage of $13.15 to the 2016 equivalent of her 

current $13.70 hourly wage, which, according to the Consumer Price Index, 

was $12.85. Nayhouse did not explain why she used the 2016 equivalent of 

Ibarra's current wage.

1 Loss of earning capacity is determined pursuant to A.R.S. § 23-

1044(C) by using average monthly wage to find reduced monthly earning 

capacity. An average monthly wage is determined by multiplying an 

hourly wage by the number of weekly hours worked on average, then 

multiplying by a factor of 4.333. Ibarra's average monthly wage at the time 

of her injury was set at $1,692.65. 

2 Ibarra testified at the hearing using a Spanish-language interpreter.
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¶7 The ALJ issued a decision in November 2019. She noted the 

rebuttable presumption that a worker's current earnings reflect the worker's 

earning capacity and found that Ibarra had not rebutted this presumption. 

The ALJ further found it was proper to use the "rollback" wage of $12.85 

per hour in determining whether there was any lost earning capacity. She 

attributed greater weight to Nayhouse's testimony than McKelvey's and 

found a 1.32% loss of earning capacity. After a summary affirmance upon 

administrative review, Ibarra filed this statutory special action.

DISCUSSION

¶8 In ICA cases, we deferentially review reasonably supported 

factual findings but independently review legal conclusions. Warren v. 

Indus. Comm'n, 202 Ariz. 10, 12, ¶ 12 (App. 2002). Ibarra has the burden to 

prove a loss of earning capacity and, if so, how much. Schuck & Sons Const. 

v. Indus. Comm'n, 213 Ariz. 74, 78, ¶ 14 (App. 2006). Post-injury earnings 

raise a rebuttable presumption that those earnings are commensurate with

earning capacity. Maness v. Indus. Comm'n, 102 Ariz. 557, 559 (1967); see also

Dye v. Indus. Comm'n, 23 Ariz. App. 68, 71 (1975) (Jacobsen, J., specially 

concurring) ("[T]he best evidence of earning capacity is [post-injury 

earnings]."). A party may rebut the presumption by a showing that postinjury earnings do not reflect actual earning capacity. See Shroyer v. Indus. 

Comm'n, 98 Ariz. 388, 392 (1965) (noting that an "increase in general wage 

levels," claimant's increased "maturity or training," pay based on "sympathy 

to claimant," and "the temporary and unpredictable character of post-injury 

earnings" may establish that post-injury earnings are unreliable) (quoting 2 

Larson's Workmen's Compensation Law § 57.21 (1952)). We agree with the 

ALJ that Ibarra has not rebutted the presumption.

¶9 Ibarra first argues that the presumption in Maness should not 

apply to this case because her job as a hostess does not require her to 

perform "all of the functions of a hostess." She implies that her current 

position and wages are based on sympathy or something unrelated to 

earning capacity because she does not perform all the typical duties of a 

hostess. The ALJ rejected that argument, and we agree. At the time of the 

hearing, Ibarra had been working as a hostess for two years and had 

received two raises. She presented no evidence that her employment and 

hourly wage as a hostess was based on anything other than merit and a 

long-standing employment relationship.

¶10 The only dispute is about the method of calculating the loss 

of earning capacity. The parties agree that the starting point for 

determining Ibarra's loss of earning capacity is her pre-injury average 
IBARRA v. OLIVE GARDEN/LM INS

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monthly wage as a cook. The ALJ determined loss by comparing the preinjury average monthly wage with Ibarra's current wage, rolled back to a 

2016 level to remove any effect of inflation. Ibarra claims that the starting 

wage for a hostess in 2016, the year of her injury, should be compared to 

her pre-injury average monthly wage, because that is the type of 

comparison that the Arizona Supreme Court made in Whyte. This is not a 

fair reading of Whyte.

¶11 In Whyte, a steelworker was severely injured in 1942, resulting 

in the loss of one leg and substantial loss of use of the other. 71 Ariz. at 340.

After hospitalization and convalescence, including the fitting of a 

prosthesis, he was reemployed by the same company as a "timekeeper" due 

to his physical limitations. Id. His wage as a timekeeper from 1947 to 1949 

was almost as much as he had been paid as a steelworker in 1942. Id. at 341.

In 1949, the ICA held a hearing to determine the injured steelworker's loss 

of earning capacity. Id. The ICA used the difference between his 1942 and 

1949 average monthly wages to find a small loss of earning capacity from

his injuries. Id. The Arizona Supreme Court rejected that calculation 

because it did not account for and remove the effects of economic 

conditions that took place after World War II. Id. at 343-44; see also Warren, 

202 Ariz. at 13-14, ¶ 21 ("The supreme court decided Whyte in 1951, during 

the postwar business boom but when memories of the great depression 

remained fresh. The accepted interpretation of Whyte has been that postinjury earnings must be discounted for inflation since the date of injury.")

(citation omitted). The Court ruled that the legislature did not intend that

economic factors such as booms or depressions must be included in the 

measure for loss of earning capacity. Whyte, 71 Ariz. at 345. The legislature 

instead intended to provide a "yardstick" of fixed length by which to

measure loss. Id. at 344. Thus, the Court compared the employee's preinjury, 1942 average monthly wage as a steelworker with the average 

monthly wage of a timekeeper at the steel company in 1942. Id. at 346. The 

Court reasoned that, upon being injured, the employee could no longer 

perform the duties of a steelworker but could earn a wage as a timekeeper. 

Id. at 345-46. The Court cautioned, however, that the ruling was limited in 

its application:

This formula, however, applies only in cases where the 

increase or decrease in wages is due solely to a change in 

economic conditions that occurs between the date the injury 

takes place and the date the injury becomes stationary, as in 

this case. It has no application where the difference in wages 

during that period is due to a change in the physical condition 

of the injured employee directly and proximately resulting 
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from said injury or due to the peculiar or special efficiency of 

such employee.

71 Ariz. at 346-47. The rule established in Whyte has been called the "equal 

measure" rule. Reavis v. Indus. Comm'n, 196 Ariz. 280, 283, ¶ 16 (App. 1999).

¶12 Ibarra's argument fails because she has not provided the 

evidence needed to make the Whyte comparison. The Whyte court ruled 

that the wage to be compared to the pre-injury average monthly wage

should be the average wage of the company's timekeepers in 1942. 71 Ariz. 

at 346. The equivalent here would be the average wage of Olive Garden 

hostesses in 2016. Ibarra only provided evidence of the starting wage for a 

new hostess and did not provide evidence necessary to make the Whyte 

comparison. 

¶13 Further, Ibarra produced no evidence to rebut the 

presumption that her current earnings reflect her earning capacity. Maness, 

102 Ariz. at 559. Ibarra was not treated as an entry-level employee when 

she was hired as a hostess in 2017. She had worked for the restaurant for 

ten years, and there is no evidence that her employer would have treated 

her as an entry-level, minimum-wage employee in 2016. Thus, there is 

reasonable evidence to support the ALJ's decision, and Ibarra's argument 

that the ALJ should have used the 2016 minimum wage is without merit.

CONCLUSION

¶14 Ibarra has not shown error in the award. We affirm.