[81 Ariz. 397] Pickrell, Hunter, Bartlett & Penn, Phoenix, for petitioner.
Robert K. Park, for respondent Industrial Commission of Arizona.
Evans, Kitchel & Jenckes, and Earl H. Carroll, of Phoenix, for respondent Phelps Dodge Corp.
Certiorari to the Industrial Commission of Arizona to test the validity of an award under our Workmen's Compensation Law. In September of 1951 George Washington Crowder, petitioner herein, sustained a compensable industrial accident which resulted in a final award of no permanent disability. Thereafter, in March, 1953, petitioner sustained a second compensable industrial accident and the commission the following July made an award there was no permanent disability from this accident. Thereafter, on petition to reopen the claim the commission made an award of scheduled partial permanent disability for the second accident. Petitioner moved for rehearing upon the ground this injury was unscheduled. Prior to this latter award petitioner had applied to reopen and readjust his compensation on the basis of new and additional disability resulting from the first accident, and thereafter the petition to reopen was denied with a finding of no permanent disability as a result of the first accident. Petitioner applied for rehearing on the disposition of this petition to reopen. The two petitions for rehearing were consolidated. The commission appointed a board of four doctors who after examination[81 Ariz. 398] of petitioner and consultation reported among other things:
'As a result of the injury sustained in the accident of September 18, 1951, and March 8, 1953, Mr. Crowder has a 15% general physical functional disability.'
In the final award which is before us the commission found:
'1. That applicant sustained personal injuries by accident arising out of and in the course of his employment on September 18, 1951 and March 8, 1953.
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'3. That applicant has sustained a 15% general physical and functional disability as the result of said accidents.
'4. That applicant's present earning capacity must be computed upon the bais of his average monthly wage at the time of said accident on September 18, 1951.
'5. That applicant's average monthly wage immediately prior to said accident on September 18, 1951, was the sum of $355.83.
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'7. That applicant has been employed as a clean up laborer and watchman since returning to work with the above-named defendant employer for which applicant has received average monthly earnings equal to or in excess of those received by applicant immediately prior to said accident on September 18, 1951.'
After making such findings the commission awarded nothing for the disability resulting from the opening of the two claims for the reason that petitioner was now earning as much or more than he was earning in 1951 at the time of the first accident.
Petitioner's average monthly wage in 1951 when the first accident occurred was $355.88. In 1953 when the second accident occurred his average monthly wage was $564.64. Although the evidence ...