[77 Ariz. 267] H. S. McCluskey, Phoenix, for petitioner.
John R. Franks, Phoenix, Robert E. Yount, Donald J. Morgan and Robert K. Park, Phoenix, of counsel, for respondent Industrial Commission.
In April 1951, Edward Henry Schnatzmeyer, a resident of Kingman, Arizona, petitioner herein, was injured by an accident arising out of and in the course of his employment. In May, the Industrial Commission of Arizona, respondent herein, made its finding that petitioner was entitled to compensation under the Workmen's Compensation Law. The following October, a consulting board of doctors recommended that in view of evident improvement with activity and use, the patient should increase his activities. He was subsequently, November, 1951, placed on a partial temporary basis, with a finding he was able to return to work and ordered that he make a sincere effort to secure the same. As a result of further medical advice, surgery was performed
in March, 1952. In January, 1953, a consulting board of three doctors reported the patient's condition stationary with a 20 percent physical functional disability, and the respondent entered findings the award for temporary total disability pending determination of loss of earning capacity and directed that petitioner make a sincere, honest and conscientious effort to obtain light work of such nature as he is capable of performing. The petitioner not having obtained employment, in May, 1953 a hearing was had for the purpose of determining his earning capacity. This resulted in findings and award to the effect that petitioner suffered 30 percent loss of earning capacity and was entitled to $54.27 monthly as compensation for permanent partial disability. On motion of petitioner a rehearing was had which resulted in amended findings with the same compensation and percentage in loss of earning capacity. On petitioner's application, certiorari issued and the matter is here for review.
Respondent found the average monthly wage of petitioner prior to the injury to be $328.90. It also found he was able to perform services as a watchman, night watchman, custodian and other light occupations not requiring strenuous physical activity; that at such employment he is capable of earning at least $50 per week or approximately $200 per month; and that this represented 70 percent of his earning capacity at the time of the injury. Such is the method whereby the Commission arrived[77 Ariz. 268] at its conclusion that petitioner had sustained a 30 percent loss of earning capacity and was entitled to $54.27 monthly compensation. The calculation will not sustain the Commission in its conclusion. Two hundred dollars is 70 percent of approximately $286 and not 70 percent of his former monthly wage of $328.90. Seventy percent of $328.90 is approximately $230 and not $200. Assuming the award is otherwise legal, the petitioner is entitled to 55 percent of the difference between his earning capacity before and after the injury. This difference on the Commission's findings is $128.90, and 55 percent of this figure is approximately $70.90 and not $54.27, the monthly compensation allowed. The difference is too great to come within the sphere of approximation. It appears therefore, that the Commission erred in fixing only 30 percent loss of earning power.
The principal condemnation leveled against this award by petitioner is that he is unable to secure employment in the Kingman area of a nature which he, in his disabled condition, is capable of performing. It is urged that the undisputed evidence is such as to compel the Commission to keep him on a total disability status until such employment is available. The rule is too well settled to require citation of authority that the only compensable unemployment is that caused by the disability. Clearly, from the evidence, petitioner is incapacitated from following his former line of work as a carpenter but is capable of performing light work if the same were available. Consequently, if compensation is to be allowed on a basis of inability to secure employment he is capable of performing, the Commission must find as a fact that his failure to find work is caused by his injuries. This court has sanctioned the principle that if one is injured in such manner that he could perform some services with some earning power, but because of the disability he cannot secure the employment, the injury is compensable. Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396; Gibson v. Industrial Commission, 68 Ariz. 313, 205 P.2d 588. In both these cases, we approved the principles announced in the Massachusetts case of In re Sullivan, 218 Mass. 141, 105 N.E. 463, L.R.A.1916A, 378, wherein an award was sustained when the evidence showed inability to secure employment after diligent effort. When a situation is presented of one partially disabled who has made sincere but fruitless effort to obtain work such as he is capable of performing, it is evidence of the causal connection between the injury and the lack of work, but it is not necessarily conclusive that the failure of employment is caused by the disability. To sustain petitioner in his contention, we would be required to say that all the evidence, including that of his unemployment, required the Commission to find that his idleness was caused by his injuries. Bearing on this
question, the Commission found that petitioner's endeavors to obtain work consisted [77 Ariz. 269] generally in keeping registered with his union and the employment office and that he had not made diligent effort to obtain work by personal solicitation. Petitioner testified that he had made some inquiries but when asked if he had sought employment from other sources than the employment office and the union, he answered, 'No. I haven't.' A boat-building establishment opened up and he had made no effort to ascertain the possibility of employment with this activity. He had not explored the possibility of employment in the mining industry in the area of which there is considerable. The tourist business is one of the sustaining activities in the Kingman area but he did not know whether there was work for him in that field. The conclusion is inescapable that petitioner relied primarily upon his union and the employment service to secure employment. The cause of unemployment is necessarily an inference to be drawn from all the facts and circumstances bearing on that issue, and we are unable to say that the Commission must infer from the evidence herein that the cause of his failure to secure work is attributable to his injuries
In the finding that petitioner did not make adequate effort to secure work, the Commission also found that he made no effort to obtain employment outside the area of Kingman. Unquestionably, this is true, but we think under the circumstances herein he was not obliged to make such effort. He is only required to make reasonable effort. Utah Fuel Co. v. Industrial Commission, 76 Utah 141, 287 P. 931. We have approved this decision in Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160. Petitioner and his wife had lived in Kingman for many years and owned their own home free of encumbrances. It would be most unreasonable to require of him that he abandon his established home and, at an expense he can ill afford, that he travel from state to state or community to community in a hopeful but possibly futile effort to obtain a secure position that would produce at least $200 per month. To say the least, there must be some reasonable assurance of security in the new location before he can be required to assume the burdensome task of the establishment of a new home. This principle was well stated in the case of Roller v. Warren, 98 Vt. 514, 129 A. 168, 170, in the following phraseology:
'* * * there is incapacity for work when a man has a physical defect which makes his labor unsalable in any market reasonably accessible to him * * *.' (Emphasis supplied.)
We know not how much weight was given this factor in deciding the cause of his unemployment, but it should have been given no consideration under the facts in this case.
The Commission made the following finding:
'11. That general economic conditions in the area of Kingman, Arizona, [77 Ariz. 270] are not conducive to the obtaining of employment. That applicant's failure to obtain employment is not due entirely to his physical condition but is due partly to economic conditions prevailing in the area in which he resides.'
This finding, when considered in connection with finding No. 10 that petitioner did not exert diligent effort to secure work, creates an element of ambiguity as to just what the Commission intended to find was the cause of the unemployment. The basic reason for requiring this effort is the obligation to minimize loss of earnings. It is an evidentiary fact that the cause of unemployment is not his injuries but his lack of effort in ...