EAGLE INDEMNITY CO.
HADLEY et al
Guynn & Twitty, Phoenix, for petitioners.
H. S. McCluskey, Phoenix, Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.
Morgan & Locklear, Phoenix, for respondent Hadley.
Evans, Hull, Kitchell & Jenckes, Phoenix, amicus curiae.
De Concini, Justice. La Prade, C. J., and Stanford and Phelps, JJ., concurring. Udall, Justice (specially concurring).
De Concini, Justice.
[70 Ariz. 181] This is an appeal by certiorari from an award of The Industrial Commission of Arizona, hereinafter called the commission, awarding permanent total compensation to one L. B. Hadley. The petitioner Eagle Indemnity Company, hereinafter called the insurer, carried the industrial insurance for the Consolidated Vultee Aircraft Corporation, the employer herein. The respondent employee, L. B. Hadley, was employed in war work as a general helper in working upon planes. He was injured on November 17, 1944, when the deck of a plane, upon which he was working collapsed, causing him to fall to the concrete pavement seven to nine feet below. The evidence shows that Hadley at the time of the said accident was 66 years of age. Hadley testified that he was in good physical condition at all times prior thereto. It is also clear that Hadley had worked two years for the employer and at all times prior to the accident without being disabled by reason of age or any condition of physical or mental disability, and that the defendant employer accepted his services on that basis. It was only after the accident that Hadley was unable to perform any remunerative employment.
There is no question but that this was a compensable injury arising out of and in the course of Hadley's employment with the above-mentioned employer. The insurer's several assignments of error and propositions of law reveal to us that the only question before us here is whether the commission's final findings and award allowing L. B. Hadley compensation for permanent total disability under section 56-956, A.C.A.1939, was correct. These assignments of error and propositions of law may [70 Ariz. 182] be reduced to two contentions, (a) that the commission erred in not apportioning the disability, and (b) that as a matter of law, the claimant (injured employee) had not suffered permanent total disability but only permanent partial disability for work.
In support of the first contention, the insurer argues that Hadley's disability was not entirely due to the compensable accident but is partly attributable to a preexisting condition of normal physical degeneration, due to Hadley's age, existing at the time of the accident and not accelerated by the injury. In support thereof, the insurer urges that the commission's findings are not supported by the evidence and that as a matter of law, the commission should have apportioned the disability and awarded compensation only for the disability resulting from the industrial accident.
In considering the merits of the insurer's claim we must of necessity look to our statutes. Subdivision (d), section 56-957, A.C.A.1939, sets out the method to be followed by the commission in determining percentage of disability as follows: "In determining the percentage of disability, consideration shall be given, among other things, to any previous disability, the occupation of the injured employee, the nature of the physical injury, and the age of the employee at the time of the injury. In case there is a previous disability, as the loss of one eye, one hand, one foot, or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury."
In the case of Lee Moor Contracting Co. v. Industrial Commission (Rhoades), 61 Ariz. 52, 143 P.2d 888, 890, we construed the above section so as to distinguish between a pre-existing condition, not disabling before the accident, and a pre-existing disability, in the following words: "There is a distinction between a pre-existing condition which is dormant and not disabling at the time of the accident and is stimulated into disability by reason of the accident, and a pre-existing disability that is added to by a second disability. In the case at bar, claimant was performing his daily manual labor with no disabling effects from his pre-existing condition up to the time of the accident, but has been disabled since. At the time of the accident he had no disability. True, he had a condition, which was susceptible of becoming a disability when aggravated. Section 56-957, Arizona Code 1939, does not
require the Commission to give effect to such a condition and attempt to apportion the concurring causes. That section only requires the Commission to take into consideration previous disability. That means an existing disability at the time of the injury, -- something that affects his earning power."
In the case at bar Hadley did not have a pre-existing disability at the time [70 Ariz. 183] of his injury which is apportionable under section 56-957, supra; on the contrary he was in good physical condition, which condition attended by his age did not ...