Wade Church, Phoenix, for petitioner.
Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concurring.
De Concini, Justice.
[71 Ariz. 172] The petitioner, S. A. Lee, at the age of 59 and while employed as a heavy duty journeyman mechanic by the System Freight Service, was injured when the axle of a truck slipped off a jack causing a lifting bar to come in violent contact with petitioner and knocking him to the concrete floor. This accident occurred August 21, 1946 and resulted in the petitioner's suffering a fractured right jaw, severe bruising of the face and contusions of the left hip and left abdomen. Petitioner was hospitalized. During the course of treatment, he underwent repair of a left inguinal hernia which had been aggravated by the injury, also, to prevent possible infections, extraction of all teeth because of their carious condition and the fitting of full upper and lower dentures. There is no [71 Ariz. 173] issue concerning the allowance of these items.
On June 10, 1947 petitioner was placed on temporary partial disability status under section 56-957 A.C.A.1939. The Commission found at that time that his condition was not stationary. That finding is not borne out by the medical evidence. The undisputed record at that time was a medical report of April 17, 1947 signed by Drs. N. A. Ross and James R. Moore, which concluded as follows:
"Comments: From the findings on physical examination today, it is apparent that recovery has occurred from the injuries sustained in the accident of August 21, 1946, and that further treatments or examinations are not required.
"We are of the opinion that as a result of the severity of the injuries sustained in this accident occurring in a man of his age, he has a 25% general physical functional disability.
"We are of the opinion that he is able to do such work as would be consistent with his age and general physical condition."
The Commission cannot disregard the undisputed evidence of a disinterested person. Wiggins v. Pratt-Gilbert Hardware Co., 48 Ariz. 375, 62 P.2d 124.
On December 9, 1947, the above-mentioned doctors after consultation with Dr. R. F. Palmer, confirmed petitioner's physical condition as stationary and that he sustained a "general physical functional disability equivalent to approximately 25%." In subsequent awards, dated January 9, 1948 and July 16, 1948, the Commission then made findings accordingly. In the award of July 16, 1948, which, unless otherwise specified, will hereafter be the one referred to by the term "award", the Commission further found that during the 6-month period, December 19, 1947 through June 5, 1948, petitioner earned an average of $ 324.88 per month, which is in excess of the $ 260.82 per month he was earning at the time he was injured. It was also recited therein that the Commission considered all factors enumerated in section 56-957, A.C.A.1939, in determining that petitioner did not suffer any loss of earning power. The award concluded with the following paragraph: "4. That ...