Rehearing Denied Sept. 25, 1956.
Jennings, Strouss, Salmon & Trask, by Wallace O. Tanner, Phoenix, for petitioner.
John F. Mills, Phoenix, for respondent Industrial Commission. John R. Franks, Donald J. Morgan, and Robert K. Park, Phoenix, of counsel.
[81 Ariz. 69] UDALL, Justice.
Petition for review of an award of The Industrial Commission of Arizona, which agency is hereinafter referred to as the commission. The petitioner, Neal Conley Morris, 40 years of age, while in the employ of the above named individuals, d. b. a. Patterson Motor Company, admittedly suffered an injury by accident arising out of and in the course of his employment. The employer was insured with the State Fund, and upon receipt of the necessary reports the commission entered an order finding the claim to be compensable. Subsequent to allowance for accident benefits and temporary total disability, the commission, when petitioner's condition became stationary, found that he was entitled to further compensation for partial permanent disability as a scheduled injury, computed on an average monthly wage base of $116.80, with certain deductions made on account of compensation theretofore paid him in a previous industrial accident.
These additional undisputed facts need to be stated in order that the problems presented may be fully understood, viz.: petitioner Morris was previously injured in an industrial accident on June 8, 1950, while employed by another party as a truck driver. He sustained multiple fractures of his right hand for which he received accident benefits plus total temporary and partial temporary compensation amounting in the aggregate to $8,656.64. In addition he was paid permanent partial disability compensation computed upon the basis of a scheduled injury under Section 56-957(b), pars. 12, 21, A.C.A. 1939 as amended by Chapter 55, Laws 1953 (now Section 23-1044, subd. B, pars. 12, 21, A.R.S.). This will hereinafter be referred to as subsection (b).
The accident in the instant case occurred on August 20, 1954, three days after he went to work for the Pattersons as a cowboy and truck driver. It appears that in attempting to rope a cow his horse fell and rolled over on him, causing a fracture of the right wrist and the left scapulae. By the time his condition became stationary for rating purposes the injury to the left shoulder had completely healed, leaving no permanent disability. However, the wrist injury proved to be permanent in its nature, and the medical advisory board's opinion was that:
'As a result of the injuries sustained in the two accidents, including the present one on August 20, 1954, he has a partial permanent disability equivalent to a 75% functional loss of the right arm.'
The commission accepted this uncontradicted medical evidence, and after determining petitioner's average monthly wage, it made findings and an award. The pertinent portions of said findings are:
'7. That said applicant suffered a previous industrial accident on June [81 Ariz. 70] 8, 1950, resulting in 80% loss of function of the right (major) hand, for which he has been compensated in the sum of $5,784.26, or for a period of 40 months.
'8. That said applicant is now suffering a 75% loss of function of the right (major) arm, which would entitle him to the sum of $58.40 monthly for a period of 45 months, of which the above 40 months is deductible; therefore, leaving the sum of $58.40 monthly for a period of 5 months due said applicant.' (Emphasis supplied.)
Petitions for rehearing were filed and granted and a formal hearing was held at which evidence was given by petitioner. Nevertheless the commission on November 4, 1955 rendered its decision upon rehearing affirming previous findings and award, and this petition for certiorari followed. From the above it will be observed that the award was made as a scheduled injury under
subsection (b), supra, which reads in part:
'(b) Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five (55) per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule:
'13. For the loss of a major arm, sixty (60) months, or of a minor arm, fifty (50) months;
'21. For the partial loss of use of * * * arm, * * * fifty (50) per cent of the ...