Rehearing Denied March 4, 1952.
Award set aside.
Leonard S. Sharman, Phoenix, for applicant.
Robert E. Yount, Phoenix, Robert W. Pickrell, Phoenix, of counsel, for respondent Industrial Commission.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
On May 26, 1948, petitioner Spencer Miles was injured by accident arising out of and in the course of his employment. He was employed at the time by Foster & Kleiser as a poster hangar and fell to the ground from a scaffold 10 to 12 feet high which, according to Dr. J. Donald Francis, his attending physician, resulted in "severe comminuted fractures of the left tibia and right tibia and fractures of the fibula at the same [73 Ariz. 209] level. Compound." The fractures in both legs were just above the ankle. X-rays showed the fractures to be well healed with some lateral offset of the upper fragment of the "right fibula about two inches above the tip of the external malleolus." Petitioner also suffered the severance of a tendon in the left ankle, referred to by medical experts as the "extensor hallucis longus" which they say is not functioning. As far
as we are able to understand from this, the muscle or tendon controlling the big toe was severed and petitioner is unable to control the movement of the great toe on the left foot upward or prevent it from dropping downward.
A claim was duly presented to the Industrial Commission on June 15, 1948 and on the following day the commission made its finding and award declaring petitioner entitled to accident benefits.
Thereafter and on August 12, 1949, pursuant to supplemental claim for compensation the commission made its findings and award for scheduled permanent disability and awarded petitioner compensation for total temporary disability from May 27, 1948 through July 23, 1949, and further found that petitioner had also suffered a permanent partial disability equal to 10% loss of function of the right leg and 20% loss of the function of the left leg entitling petitioner to compensation therefor in the sum of $ 157.48 monthly for a period of 15 months.
A petition for rehearing was filed which was granted and on the following December 22nd the commission awarded petitioner compensation for temporary total disability pending determination of loss of earning capacity until January 19, 1950. Later this order was continued through September 16, 1950.
Finally on June 6, 1951, the commission, after further hearing before it, made its finding and award based upon permanent partial disability of petitioner in which it found petitioner was earning $ 314.95 at the time of his injury, that his physical condition became stationary on Nov. 1, 1949, that the evidence before it indicated petitioner had suffered 25% loss of his earning capacity and was entitled to compensation in the sum of $ 43.31 monthly as and for permanent partial disability; that in determining loss of earning capacity it had considered all the factors outlined in subsection (d) of section 56-957, A.C.A.1939.
Petitioner brings the matter to this court on certiorari and assigns as error the finding by the commission of a 25% loss of earning capacity and award based thereon of $ 43.31 per month, for the reason that it ...