APPEAL by Certiorari from an award of the Industrial Commission of Arizona.
Award set aside.
Messrs. Ellinwood & Ross, Mr. George E. Wood, for Petitioner.
Mr. H. S. McCluskey, for Respondent Industrial Commission.
Mr. John R. Franks, of Counsel.
LaPrade, J. Arthur T. LaPrade, Judge. Stanford, C. J., and Morgan, J., concur.
[63 Ariz. 504] The Industrial Commission after a hearing as provided by law, Article 9, Chapter 56, Arizona Code Annotated 1939, made its award in favor of claimant, Alex Tapia and against Tovrea Packing Company, a corporation, his employer, and the latter, being dissatisfied therewith, has brought the matter here for review by writ of certiorari.
The facts in this case, briefly summarized, are as follows: The applicant, Alex Tapia, was employed by Tovrea Packing Company at its plant on East Van Buren Street, Phoenix, Arizona. On January 18, 1945, applicant sustained an injury by accident arising out of and in the course of his employment while grinding hamburger. The injury was to applicant's left thumb and resulted in the amputation of the tip or approximately one-fifth of the distal phalange, approximately one-third of the nail, and the cushion on the end of the thumb. The operation on the finger consisted of trimming off the bone and smoothing it down so that portions of the flesh could be pulled together and sutured to form a cushion at the end. Applicant returned to work on February 27, 1945, there being no loss of [63 Ariz. 505] function of the thumb. Thereafter, the Industrial Commission made its findings and award for a scheduled permanent disability, granting to applicant compensation for temporary disability and additional compensation for permanent partial disability, the latter being based upon a finding by the Commission that the injury caused a permanent partial disability, which is scheduled under Subsection (b) of Section 56-957, Arizona Code Annotated 1939. The employer filed its petition and application for rehearing on the ground that there was no evidence to support the finding of a scheduled permanent partial disability. The findings and award and decision upon rehearing affirmed the original findings and award.
Finding No. 4 on the rehearing reads as follows:
"That said injury also caused a permanent partial disability which is scheduled under the provisions of Paragraphs 1 and 6, Subsection (b), Section 56-957, Arizona Code, 1939, and said permanent partial disability is equal to 50% loss by amputation of the left thumb and entitles said applicant to compensation therefor in the sum of $ 93.16 for a period of (7 1/2) seven and one-half months."
The respondent assigns this finding as error for the reason that said finding is not supported by, but is contrary to, the evidence in that according to the evidence applicant did not lose the distal phalange of his thumb. In support of this assignment of error, respondent offers the following proposition of law:
"The loss of less than substantially all of the distal, or second, phalange of the thumb does not constitute a scheduled permanent partial disability under the provisions of Paragraphs 1 and 6, Subsection (b), ...