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Wammack v. Industrial Commission of Ariz.

Supreme Court of Arizona

February 5, 1958

Richard H. WAMMACK, Petitioner,
v.
The INDUSTRIAL COMMISSION OF ARIZONA, and Peerless Concrete Pipe Company, Respondents.

Page 951

[83 Ariz. 323] H. S. McCluskey, Phoenix, for petitioner.

John R. Franks, Phoenix, for respondent Industrial Commission. Donald J. Morgan, Robert K. Park, and James D. Lester, Phoenix, of counsel.

STRUCKMEYER, Justice.

Petitioner Richard H. Wammack, while working for the Peerless Concrete Pipe Company, suffered injuries in an accident arising out of and in the course of his employment. He sustained severe contusions of the hips and legs with marked compression of the pelvis, a fracture of the left publis and of the sacrum. On April 18, 1956, the Commission found that the monthly wage of petitioner prior to this injury was the sum of $377.89, and awarded temporary partial disability pending determination of permanent partial disability. Two further hearings were held. The first resulted in an award on October 10, 1956; the second, on petitioner's motion for rehearing, in an award on May 23, 1957. Thereafter, on June 4, 1957, a second application for rehearing was filed, but prior to any formal action by the Commission, a petition for writ of certiorari was filed in this court.

Petitioner questions the determination by the Commission of the average

Page 952

monthly wage prior to his injuries. This determination, as was pointed out, was initially made on April 18, 1956. Under the decisions of this court, the findings and award are conclusive unless presented on appeal within thirty days after denial of a motion for rehearing. Kelsey v. Industrial Commission, 79 Ariz. 191, 286 P.2d 195; Hamlin v. Industrial Commission, 77 Ariz. 100, 267 P.2d 736; Steward v. Industrial Commission, 69 Ariz. 159, 211 P.2d 217.

Petitioner further questions the action of the Commission in adopting its findings and award of May 23, 1957. [1]

[83 Ariz. 324] Section 23-1044, subd. C, A.R.S.1956 provides that in cases of permanent partial disability there shall be received by the employee compensation equal to 55% of the difference between the average monthly wages before the accident and the amount which represents the reduced monthly earning capacity resulting from the disability. In determining the amount of the reduced monthly earning capacity, Section 23-1044, subd. D, A.R.S.1956 requires the Commission to give consideration 'to any previous disability, the occupational history of the injured employee, the nature and extent of the physical disability, the type of work the injured employee is able to perform subsequent to the injury, any wages received for work performed subsequent to the injury and the age of the employee at the time of injury.'

Before proceeding further, certain infirmities in the findings upon which the last award of May 23, 1957 was based should be observed. First, as shown by finding number 11, the work period used by the Commission to determine claimant's earnings was from January 19, 1957 to March 14 of the same year. This use by the Commission of 55 days tends to falsely suggest a higher earning capacity than actually existed. The record shows that petitioner commenced the manufacture of outlet boxes and slides on December 19, 1956. He worked continuously, in the sense of having no other employment, from that time until March 14, 1957, for a total of 86 days. During this period of time he earned $540.42. We hardly think it proper for the Commission to single out a portion of petitioner's work period during which the cumulative effect of petitioner's labors would ostensibly evidence a higher earning capacity than actually existed.

Page 953

Second, it is impossible to commend the procedure used in finding number 12. Therein the Commission, by previous work history and earnings, determined that petitioner has a capacity to earn $51.36 a week. By what relevant mathematical procedure the sum of $51.36 can be derived from the [83 Ariz. 325] claimed total earnings set forth in finding number 11 is not explained in the record, nor are we able to imagine a possible basis thereof. Moreover, the finding that claimant was able to earn $51.36 a week does not comply with the statutory requirement that the determination shall be of the reduced montnly earning capacity.

Third, the Commission by its purported finding number 14 states that it has given full consideration to each of the matters set forth in Section 23-1044, subd. D supra and full consideration to all of the facts and circumstances pertaining to the case. Other than the wages received for work performed subsequent to the injury, the findings do not reflect what matters were given consideration in arriving at reduced earning capacity and we are of course wholly unable to determine how they influenced the ultimate award. The mere statement that these matters and others have been given consideration does not save this award from the appearance of being arbitrary.

It is the rule that the findings of administrative agencies must be explicit to enable the reviewing court to review the decision intelligently and to ascertain whether the facts as found afford a reasonable basis for the decision or be sufficiently definite and certain to permit of judicial interpretation. Dole v. Industrial Commission, 115 Utah 311, 204 P.2d 462; Boen v. State Industrial Commission, 202 Okl. 258, 212 P.2d 457; and see 73 C.J.S. Public Administrative Bodies and Procedure § 140, p. 468. The findings in this case are not only contradictory, but when examined in the light of the evidence presented to the Commission are devoid of any apparent relevant foundation. An award must be predicated upon actual evidence in the case and the various imponderables must find some support in evidence. Eaves v. Industrial Commission, 73 Ariz. 78, 237 P.2d 809; Miles v. Industrial Commission, 73 Ariz. 208, 240 P.2d 171.

We agree with petitioner that it is impossible to determine from his work history and earnings in the manufacture of boxes and slides his reduced monthly earning capacity resulting from the disability. At the hearing on petitioner's motion for rehearing, many witnesses were called who testified to his general physical incapacity. Among these was Harold E. Baker, president and manager of the Peerless Concrete Pipe Company, petitioner's employer for a year prior to the accident and only employer since the accident. He testified that petitioner was not able to perform the ordinary work in the business in which he had been employed prior to injury and that from December 19, 1956 through March 14, 1957 the company paid petitioner on a piecework basis. He further testified that the company made a job for petitioner and would not employ him except for the fact that he [83 Ariz. 326] was injured in its employ. On cross-examination he stated:

'Q. There is no indication at this time that you are going to release him tomorrow or the next day, ...


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