Award set aside.
Leonard S. Sharman, Phoenix, for petitioner.
H. S. McCluskey, Phoenix, for respondent, Industrial Commission, Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel.
De Concini, Justice. Stanford, Phelps and La Prade, JJ., concur. Udall, Chief Justice (dissenting).
De Concini, Justice.
[73 Ariz. 79] The facts involved in this case are not in dispute. Petitioner at the time of his injury was a lineman, aged 24 years, employed by the Trico Electric Cooperative, Inc. He fell from a power pole and severely injured his back. The commission found that at the time of his injury he was earning an average of $ 360 per month. He was paid total temporary disability and medical benefits. After his condition became stationary and a final award was made he was unable to return to his former type of work, but did obtain employment as a peace officer in the town of Eloy at the rate of $ 275 per month.
The commission found that as a result of his injury, there was a 10% general functional disability. The commission gave him an unscheduled permanent partial disability rating of 20% and awarded him $ 39.60 monthly.
Petitioner brings this matter for review by certiorari under section 56-972, A.C.A.1939, and assigns as error that the commission's award was in error because the uncontradicted evidence showed him to have sustained a 23.6 per cent loss of earning capacity.
The pertinent provisions of our statutes governing this situation are subsections (c) and (d) of section 56-957, A.C.A.1939:
"(c) In cases not enumerated in subsection (b), where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, but the payment shall not continue after the disability ends, * * *.
"(d) 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. * * *"
It is the petitioner's contention that the meaning of section 56-957(c), supra, is clear and unambiguous, and that the commission under the peculiar facts of this case has no discretion but must base its award on 55% of the difference between what petitioner earned prior to the accident and what he is now able to earn, i. e., $ 360 minus $ 275 equals $ 85 ...