Croaff & Croaff, Phoenix, for applicant-petitioner.
H. S. McCluskey, Phoenix, for respondent Industrial Commission, Robert E. Yount and Donald J. Morgan, Phoenix, of counsel.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
Petitioner-applicant, John W. Wofford, while employed by the Veta Mines, Inc., which was insured in the state compensation fund, sustained an injury by an accident arising out of and in the course of his employment. The accident occurred while applicant was changing bits; by striking a bit with a hammer, a piece of steel flew from the bit striking him in the left eye. Within the prescribed period applicant filed a claim for compensation with the respondent insurance carrier, the Industrial Commission of Arizona.
After considerable treatment applicant lost all sight in his left eye. Respondent awarded him the maximum compensation allowed under the statute for the loss of an eye without enucleation. After the award was paid, applicant filed a motion for a rehearing before the commission to show that the injury had resulted in his permanent disfigurement; in support of which a medical report was filed by his attending physician. The report showed that a slight secondary membrane had formed over the pupillary area. The commission denied the rehearing and affirmed the previous findings and award on the ground that the applicant had been compensated in full as provided by the statute. Applicant appeals from the final award denying him further compensation.
Section 56-957, A.C.A.1939, controls the case at bar; subparagraph (b), subsection 17, provides:
[72 Ariz. 107] "Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five (55) per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule:
* * *
"17. For the permanent and complete loss of sight in one eye without enucleation, twenty-five (25) months."
Petitioner contends that subsection 22 of this statute also applies, under the facts in this case. That subsection provides: "For permanent disfigurement about the head or face, which shall include injury to or loss of teeth, the commission may allow such sum for compensation thereof as it may deem just, in accordance with the proof submitted, for a period not to exceed eighteen (18) months."
The sole question to be considered in this case is whether an injured workman who has been compensated in full for loss of an eye without enucleation, a scheduled loss, may be additionally compensated ...