APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Messrs. Silverthorne & Silverthorne, for Petitioner.
Mr. Don A. Babbitt and Mr. Howard A. Twitty, for Respondent.
[52 Ariz. 467] ROSS, J.
The petitioner is dissatisfied with the award of the Industrial Commission and brings it before the Supreme Court for review.
He was working for the Gillespie Land and Irrigation Company, insured in the state compensation fund, when, on January 30, 1937, he was injured. At the time of his injury he was driving a tractor. In turning the tractor, it slipped on some loose hay and rolled over. Petitioner jumped and was on his hands and knees when a wheel of the tractor passed over the back of his right lower leg fracturing the extreme lower end of the fibula. All agreed it was a crushing injury.
In due time, he made application to the Industrial Commission for compensation. Owing to the inability of the physicians attending petitioner to determine whether the injury would be permanent and if so the extent of it, the application was not passed upon until March 1, 1938, when the commission allowed him compensation for temporary disability in the sum of $553.71; and permanent partial disability equal to a [52 Ariz. 468] 10 per cent. loss of function of the right foot, or for the period of four months at $30 per month.
The petitioner filed his motion with the commission for a rehearing, which was granted and held on April 20, 1938. At such hearing petitioner introduced evidence showing or tending to show that the permanent partial disability to his leg and foot was from fifty to sixty per cent. The respondent introduced no evidence but relied upon the evidence before it at the time of making the award (March 1, 1938), consisting of the unverified reports of the medical rating board, particularly the one of February 7, 1938, reading:
"He still complains that he cannot put any weight at all on the toes and that the calf muscles cramp and that the foot gets cold. He can put full weight on the heel but cannot lift the heel to throw the weight on the ball of the foot. He claims that this is not because of pain but that he simply has not the muscular action to do it. With the foot off the floor, however, he can plantar flex it. The movements at the ankle are all practically normal except there is slight limitation of dorsiflexion.
"There is at this time no motion at the point of fracture. The patient walks with a slight limp. The measurements are as follows: At the calf, left side, 15 1/2 cm., right 12 cm.; left ankle 9 1/2 cm., right 9 cm.; mid-thigh 16 3/4 cm. on each side.
"The X-ray examination made on February 5th (1938) in comparison with the findings of the examination of November 6th (1937) indicate that there is quite definite increase in the amount of callus and definite evidence of union at the fracture. The callus formation has not been entirely converted into normal bone structure at this fracture and probably the fracture would not be regarded as completely closed at this time. It does, however, appear to be sufficiently firm for functional use of the foot. The atrophy throughout the bone structure of the foot and ankle area has changed quite definitely for the better. The bone structure is more nearly normal and the mottling and [52 Ariz. 469] cloudiness in the tarsal bones has practically disappeared.
"Conclusions: After reviewing the findings, making physical examination, testing the functions of the ankle, and giving consideration to the X-ray findings, the Board is of the opinion that the only disability now present is from non-use ...