Award set aside.
Marvin Johnson, Phoenix, for petitioner.
Donald J. Morgan, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.
La Prade, Justice. Udall, C. J., and Stanford and De Concini, JJ., concurring. Phelps, Justice (specially concurring).
La Prade, Justice.
This proceeding is by certiorari prosecuted at the instance of Elmer Huddleston, Petitioner, to review an amended award of the Industrial Commission of Arizona. [72 Ariz. 270] It appears that the petitioner was employed
by the respondent, Beulah Anderson, dba Anderson Boarding & Supply Company, as a dishwasher. On the 14th day of September, 1946, petitioner suffered injury by accident arising out of and in the course of his employment with the respondent employer.
The first report of the attending physician shows that as a result of the accident, petitioner was in a state of shock and suffered internal injuries which produced blood in the urine. In addition to these injuries, he had five ribs fractured, comminuted fracture of the left clavicle, mulitiple abrasions and contusion of the left shoulder, arm and both legs. On October 18, 1946, petitioner was released from the hospital in Tucson and sent to Phoenix for "observation-supportive and tonic medication". At the time of the accident and resulting injuries, petitioner was 69 years and 7 months of age. The report of the attending physician filed with the commission on November 1, 1946, contained a notation that normal recovery would be delayed "because of the age of the patient and he does not look robust". The next medical report was filed December 30, 1946, and stated that the petitioner could not return to work and that there would be some permanent disability, and further "Patient is co-operating as much as he can. He develops colds and coughs much at night and has a generally hard time. Might be necessary to hospitalize him because of his general condition."
A medical report filed later, to-wit, February 10, 1947, was to the effect that the patient had not recovered, that he was unable to work and that his disability was total, and carried the following notation: "No new complications but just does not get well and has numerous complaints. I do not believe that he is able to work. Request a consultation board and request that some internist be on the board. * * * This is an old man 69 years old and he was quite severely injured and I do not believe that he is able to do anything but the lightest work."
In March, 1947, Huddleston was referred to a medical board which board reported that he had recovered from his injuries and that his condition had become stationary so far as the injuries were concerned, and that he had sustained a 25% general physical functional disability attributable to the injuries sustained. By way of comment, the report contained the following information: "In reviewing this case and considering the cause of disability, we are of the opinion that the principal factors are his age and the effect of chronic alcoholism; to a less extent his disability can be attributed to the injuries in the accident of September 14, 1946. * * * Further treatments or examinations for the above injuries are not indicated. Because of his age, poor general physical [72 Ariz. 271] condition and history of chronic overindulgence of alcohol, he may require care and observation but this is in no way connected with the accident in question."
On May 7, 1947, the commission made its findings and an award granting petitioner compensation for total permanent disability. In addition to the jurisdictional facts, the commission found that his average monthly wage was $ 276.00 a month, and fixed his compensation at $ 179.40, being 65% of his average monthly wage (sec. 56-956, A.C.A.1939). Respondent-employer seasonably filed an application for rehearing, challenging the findings: (1) that the average monthly wage was $ 276.00; (2) that the employee had sustained a total permanent disability. A rehearing was granted, at which time witnesses were sworn and evidence adduced. On August 11, 1947, the commission reaffirmed the jurisdictional findings, including the finding that his average monthly wage was $ 276.00, but modified the finding that he had suffered total permanent disability and found that he had sustained a permanent partial disability, compensable under section 56-957, subsection (c), A.C.A.1939, as an unscheduled injury, and ...