Award set aside.
Mack Arthur Matlock, in personam.
H. S. McCluskey, of Phoenix, attorney and Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondent.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[70 Ariz. 28] This is an appeal by certiorari from an award of the respondent Industrial Commission of Arizona, hereinafter called the commission. M. A. Matlock, hereinafter called the petitioner, contends that the commission, defendant insurance carrier herein, erred in its final findings and award.
Petitioner suffered an injury arising out of and in the course of his employment with Thomas G. Beaham (Double X Ranch). The accident occurred on August 19, 1946, when a horse fell on petitioner, while he was attempting to rope a calf, resulting in injuries to his right shoulder, right side and pelvis. The commission awarded him accident benefits and compensation for temporary disability up to
and including August 19, 1949. In the Final Findings and Award of September 24, 1949, the commission refused to allow petitioner any compensation for permanent partial disability to which the petitioner claims he is entitled. The petitioner also complains of the commission's finding as to his average monthly wage.
It is well established that in reviewing an award of the commission, our review is directed toward determining whether or not the commission acted within its powers, its findings support the award, and the award and findings are supported by the evidence. Section 56-972, A.C.A.1939; Kennecott Copper Corp. v. Industrial Comm., 62 Ariz. 516, 158 P.2d 887.
The first contention urged by the petitioner is that the fifth finding of the commission, to-wit: "That the average monthly wage of said applicant immediately prior to said personal injury was the sum of $ 144.83", is erroneous. It is undisputed that the wage of the petitioner consisted of a salary of $ 125 per month plus a house, utilities, milk, butter, eggs, and meat whenever cattle were slaughtered, for petitioner, his wife and three children. The commission in its finding that the average monthly wage of petitioner was $ 144.83, thus valued the house, utilities, butter, eggs and meat at $ 19.83 per month. It is clear that the commission based this figure upon the employer's valuation thereof for premium purposes. There is no evidence in the record to support this finding. On the other hand, the evidence discloses that the above-mentioned elements have a value greatly in excess of $ 19.83 per month. On rehearing, the commission therefore, must correct this erroneous finding and determine the true value of the aforesaid items; since under section 56-972, A.C.A.1939, of the Workmen's Compensation Law, we may only enter judgment affirming or setting aside an award but may not modify it.
Petitioner's other contention is that the commission incorrectly refused to award him compensation for permanent partial disability. The findings of the commission and the evidence before us in the record ...