KENNECOTT COPPER CORPORATION, a Corporation, Successor to Nevada Consolidated Copper Corporation, a Corporation, Petitioner,
THE INDUSTRIAL COMMISSION OF ARIZONA, RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of the Industrial Commission of Arizona, and CASTULO G. GARCIA, Respondents
APPEAL by certiorari from an award of The Industrial Commission of Arizona.
Award set aside.
Messrs. Fennemore, Craig, Allen & Bledsoe, for Petitioner.
Mr. H. S. McCluskey, and Mr. David P. Jones, for Respondents.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[62 Ariz. 518] The respondent Castulo G. Garcia, while in the employ of petitioner, was seriously injured in an accident arising out of and in the course of his employment on November 19, 1942. He was aged 33 years, was of limited education, and had spent practically all his mature years working in and about mines. He had a wife and four children dependent upon him, and was earning at the time of the accident $ 186.30 per month. The principal injuries were fractures of the right clavicle, mid-portion of first and second ribs, fracture of the pelvis, and very severe shock. He suffered aggravation of a previously existing unknown heart condition. Applicant was hospitalized and treated until April 4, 1944.
There is no conflict in the evidence. The doctors were of the opinion that the applicant had a 25% [62 Ariz. 519] general functional disability attributable to the aggravating effects of the accident, and that he would be unable to follow his usual occupation. They gave it as their opinion that he was able to engage in light occupations not requiring more than slight exertion. The applicant's evidence disclosed that he had sought but was unable to find any employment in which he could engage. The medical evidence and the proof on the whole indicate that applicant's condition was stationary and that his physical disability was permanent. An examination of the applicant on June 9, 1944, by three doctors, made at the suggestion of the commission, indicated that applicant complained that his right upper extremity still bothered him. It also appears that during the year preceding this examination his heart condition had been alleviated to some extent.
The applicant was awarded total disability with benefits, under the provisions of Section 56-956, Arizona Code Annotated 1939, Subsection (a), up to April 4, 1944. On the 24th of August the respondent commission made an award effective as of April 4, 1944, giving the applicant a status of temporary partial disability, under Section 56-957, Subsection (a), allowing him compensation of 65% of the difference between $ 186.30 and the wages the applicant is able to earn after April 4, 1944, until the further order of the commission, not to exceed sixty months. There
was no finding as to the amount of wages that applicant might be able to earn after April 4th, and no evidence in the record upon which to base such a finding. The commission found that the physical condition of the applicant was and had been stationary since April 4th, that he had completely recovered from personal injuries sustained from the various fractures, that the accident had aggravated a pre-existing heart condition to such an extent as to cause a 25% functional disability, and concluded that he was suffering a temporary partial disability.
[62 Ariz. 520] The petitioner filed seasonable application for rehearing. In this application it offered to prove by the testimony of a number of doctors who had examined the applicant, and by x-rays, that the disability was permanent. Without hearing any evidence as to this, the commission denied the petition on September 8, 1944, and the petitioner thereupon brought the matter before this court through the usual certiorari proceedings.
Two questions are raised by the petitioner: (1) Where the evidence is uncontradicted that the physical condition of the applicant is stationary and the award so finds, may the commission award compensation upon the basis of continuing temporary partial disability. (2) If so, may the commission award compensation for such partial disability without finding as a basis for its award the amount of wages which the applicant is able to earn after the injury.
The commission asked for a determination of the following issues: (1) What is the procedure provided by law in a non-schedule injury of this nature? (2) When, under the law, is a case stationary? (3) Must the commission, before classifying a disability case as one of partial disability, immediately establish percentage of loss of earning power, or does it have jurisdiction to determine when the evidence is sufficient for that purpose? (4) When a man suffering from a non-schedule injury is discharged as a total disability subject, and the evidence tends to show that he has a permanent partial physical disability, must the commission immediately rate him under the permanent partial ...