Rehearing Denied March 23, 1954.
[77 Ariz. 101] Richey & Herring, Tucson, for petitioner. Graydon Beeks of counsel.
Robert E. Yount, Phoenix, for respondents The Industrial Commission of Arizona, John R. Franks, Priscott, Donald J. Morgan. Robert K. Park, Phoenix, of counsel.
Frank M. Hamlin, Jr., hereinafter designated petitioner, sustained an injury arising out of and in the course of his employment and filed a claim with the Industrial Commission of Arizona, hereinafter designated Commission, for compensation under our workmen's compensation law. On March 18, 1948, the commission made findings and order that the claim was compensable and commenced the payment of compensation for total temporary disability calculated on the basis of an average monthly
wage of $347.60. In October, 1948, petitioner was hospitalized and laminectomy and exploration for disc was done followed by spinal fusion. Approximately two years following the filing of the claim and findings and order of the Commission, on February 9, 1950, the Commission wrote petitioner to the effect that at the time of making the initial findings and order, it appeared his average monthly wage was $347.60, but that subsequent investigation developed the fact that the average monthly wage should have been $97.20 and proposed to adjust his compensation accordingly without requiring refund. This was protested by petitioner and after further investigation, the following month the Commission by letter to the petitioner changed the wage base to $246.60. The record further shows that on May 1, 1950, after still further investigation, the average monthly wage was again changed to $255.90. On June 24, 1950, the Commission made its formal findings and award. In the findings are the following:
'5. That said applicant is entitled to compensation for total temporary disability from February 25, 1948 [77 Ariz. 102] through January 20, 1950, in the sum of $5,472.89 which was computed on the wage of $347.60.
'6. Readjustment of the wage pursuant to the Decision of the Supreme Court of the State of Arizona of William E. Steward vs. The Industrial Commission of Arizona and Chambers Transfer & Storage Company, reveals that additional compensation should be based on the adjusted average monthly wage of $255.90.'
The award allowed compensation as authorized by these findings.
Petitioner filed notice of protest of the foregoing award but filed no petition for rehearing. Payments were made and received under this award until the following December, when petitioner filed his application for reopening and readjustment on the basis that he was suffering from previously undiscovered disability. This petition was allowed and on January 8, 1951, the Commission made its findings and award to the effect that petitioner was suffering from additional or previously undiscovered disability and allowed compensation for total temporary disability until further order of the Commission. Subsequent to this award, doctors who examined petitioner recommended that a section attempt at spinal fusion by surgery be made. After considerable correspondence and consultation with doctors furnished by the Commission, petitioner not having advised the Commission if he would submit to this second surgical operation, the Commission by letter on July 21, 1951, advised petitioner that if it did not hear from him within ten days, it would assume he had refused to submit to the recommended surgical operation and would proceed to close his case. Not receiving any reply to this letter, the Commission did on August 13, 1951, order that no further compensation be payable to the petitioner as of July 17, 1951, until he 'either submits to the treatment recommended, or until further competent medical evidence is submitted to the Commission indicating the advisability of some other type of treatment.' Nothing further was done in the matter until the following January when, pursuant to correspondence between the Commission and petitioner, a medical advisory board of five doctors was appointed and after its examination of petitioner, it reported under date of March 3, 1952, that since the board was unable to guarantee success of a second operation, it was obvious petitioner would refuse the offer of surgery. The board also found that his condition was stationary with no further treatments indicated and that he had a 20 percent functional disability.
On April 6, 1952, petitioner filed a petition with the Commission asking to set aside the suspension order of August s3, 1951, and that he be allowed compensation calculated on an average monthly wage of $347.60. A hearing was held on this petition[77 Ariz. 103] resulting in the final award involved herein which award adjudged that the suspension order was reasonable; that the award of June 24, 1950, had become final; and allowed petitioner compensation under the terms thereof from July 18, 1951, until further order of the Commission. Rehearing having been denied, we issued certiorari.
We have held that while our compensation law provides for no express continuing jurisdiction, yet for the purpose of rearranging compensation for subsequently discovered disability, the Commission has the implied power to open the
case and readjust a former fixed compensation in accordance with a changed physical condition, Zagar v. Industrial Commission, 40 Ariz. 479, 14 P.2d 472, or to adjust earning capacity resulting from a changed physical condition, Lee v. Industrial Commission, 71 Ariz. 171, 224 P.2d 1085. We have also held that such rearrangement could operate only prospectively, the former award at the time of judgment being res judicata as to the physical condition prior to the change. Zagar v. Industrial Commission, supra; Beutler v. Industrial Commission, 67 Ariz. 72, 190 P.2d 918.
We have also extended this continuing jurisdiction to a situation where a former award was based on mere clerical error or mutual mistake. Hamer v. Industrial Commission, 43 Ariz. 349, 31 P.2d 103; Martin v. Industrial Commission, 63 Ariz. 273, 161 P.2d 921. We are now asked to extend this power of continuing jurisdiction to enable the Commission to modify an average monthly wage on the basis only of a subsequent change in the law prescribing the method of calculating such wages. In arriving at the average monthly wage of $347.60, the Commission used the formula which was used in the case of Jackson v. Del E. Webb Const. Co., 61 Ariz. 391, 149 P.2d 685. In a later case decided July 18, 1949, this court disapproved the decision in the Jackson case, supra, and prescribed the proper method of arriving at the average monthly wage under facts such as are involved herein. Steward v. Industrial Commission, 69 Ariz. 159, 211 P.2d 217. It was also held in the Steward case that when the Commission had fixed an average monthly wage under the formula authorized by the Jackson case, it could not be changed even if by subsequent decision such formula was held to be incorrect. In other words, a decision interpreting a statute becomes a part thereof and is the law until changed by a different judicial interpretation. When the wage base of $347.60 became effective in February 25, 1948, the Jackson decision was the law, and it was made in accordance with the formula sanctioned by that decision. It was obviously legal if measured by the law announced therein. Under such circumstances the Steward decision holds unequivocably that the fixing of an average monthly wage under such conditions [77 Ariz. 104] is binding on the Commission and it has no power to review or disturb it thereafter. The order modifying this wage base shows on its face that it is an attempt to change the average monthly wage because of this court's decision in the Steward case. It is obvious that by the formal award of June 24, 1950, the Commission formally established the original wage base of $347.60 as of February 25, 1948, and allowed compensation thereon through January 20, 1950, then changed the wage base to $255.90 for all subsequent compensation. The Commission only has the power to fix one correct wage base and that is to be fixed as of the date of the injury. Section 56-952, A.C.A.1939. If the $255.90 was correct on January 20, 1950, the effective date given it by the award, it was of necessity the correct figure on February 25, 1948. If the $347.60 was correct on February 25, 1948, it is correct during the entire period of petitioner's disability. The Commission is entitled to pay and the employee entitled to receive during his period of disability compensation calculated on a legally fixed average monthly wage as of the date of his injury. When this is established, it is final and the Commission has no power to change it. It follows that the wage base of $347.60 fixed by the Commission as of the date of injury is res judicata and binding on both the Commission and petitioner.
It is contended by petitioner that the order of August 13, 1951, suspending petitioner's compensation for the reason that he refused to submit to the second spinal fusion operation is void because he was justified in his refusal and could not be penalized therefor. The right and power of the Commission to suspend compensation benefits for ...