Rehearing Denied December 18, 1951.
Udall & Peterson, of Safford, for petitioner.
H. S. McCluskey, of Phoenix, (Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel), for respondent Industrial Commission of Arizona.
La Prade, Justice. Udall, C. J., and Stanford and Phelps, JJ., concur. De Concini, Justice (dissenting).
La Prade, Justice.
[73 Ariz. 58] Certiorari to review an award of the Industrial Commission. In June, 1949, petitioner sustained personal injuries by accident arising out of and in the course of his employment. On November 6, 1950, the commission entered its findings and award for permanent partial disability, which findings and award were affirmed on rehearing.
With reference to the injuries or a residue thereof, the evidence appears to be in conflict. The medical evidence is to the effect that petitioner has suffered a 45% disability of loss of use of the right foot and a 50% plus disability of loss of use of the left arm which were translated into a 35% general functional disability.
Evidence at the time the record was made disclosed that at the time of the [73 Ariz. 59] injury petitioner was employed as a lineman by the respondent public utility and earning $ 250 per month; that on June 1, 1950 he returned to his old job at the reduced monthly wage of $ 200 per month due to the fact that when he returned to employment he was not able to render full service; that at the date of the award, to wit, November 6, 1950, he was still earning $ 200 per month; that on December 1, 1950, some 24 days after the award, his wage was raised to $ 247.50 per month and on or about March 15, 1951 he was receiving the full wage then being paid for the position, namely $ 285 per month, and continued to and was receiving the increased and full wage at the time the rehearing was determined on May 23, 1951.
The award was predicated upon the provisions of section 56-957, A.C.A.1939, subsections (c) and (d), and the injuries were treated as unscheduled. It was specifically found: "That the physical injury caused by said accident consisted of multiple injuries" and "that said applicant has suffered a 20% loss of earning power, and is entitled
to 55% of the difference between $ 250.00 and $ 200.00 which is the sum of $ 27.50, payable monthly until further order of the Commission." No complaint is made concerning the accident benefits that were afforded nor the compensation that was paid for temporary disability. It is apparent that the award made was for permanent partial disability resulting from unscheduled injuries not within the provisions of subsection (b) of section 56-957.
Petitioner's assignments of error and propositions of law in support thereof all go to the proposition that petitioner was entitled to be compensated under the provisions of section 56-957(b), 13, 15 and 21, relating to scheduled losses and, in addition thereto, was entitled to a loss of earnings award based on subsections (c), (d) and (e) of section 56-957. Compensable scheduled injuries are compensated for regardless of the fact that there may be no disability to earn wages as a result thereof. Sections 56-956, 56-957(b); Ossic v. Verde Central Mines,46 Ariz. 176, 49 P.2d 396; Six Companies, Inc., v. Industrial Commission,41 Ariz. 366, 18 P.2d 913; Ujevich v. Inspiration Consol. Copper Co.,42 Ariz. 276, 25 P.2d 273, 275. Compensable injuries of the unscheduled variety are compensable under the provisions of subsections (c) and (d) of section 56-957, and ...