Fred A. GALLO, Petitioner,
The INDUSTRIAL COMMISSION OF ARIZONA, and Arizona Service Company, Respondents.
[83 Ariz. 393] Alan Philip Bayham, Phoenix, for petitioner.
Robert K. Park, Phoenix, John R. Franks, Donald J. Morgan, and James D. Lester, Phoenix, of counsel, for respondent Industrial Commission of Arizona.
[83 Ariz. 394] JOHNSON, Justice.
On March 17, 1949, petitioner sustained personal injury arising out of and in the course of his employment which consisted of a brain injury, broken left shoulder blade and a wrenched back.
On August 30, 1950, the Commission entered a finding and award that petitioner had sustained a permanent partial disability of fifteen per cent loss of earning capacity, and awarded compensation in the monthly sum of $17.16. This award became final without protest. Thereafter, petitioner sustained twelve additional accidents while employed by various employers, all of which were accepted as compensable. Four of the twelve subsequent accidents resulted in compensable loss of time; and three times the Commission affirmed the award of August 30, 1950. But on the fourth, on June 15, 1956, the Commission entered an order terminating the benefits for permanent partial disability awarded on August 30, 1950. The Commission, on November 13, 1956, after rehearing, entered its order affirming the termination order of June 15, 1956, based on the following findings:
'1. That applicant's average monthly wage prior to said injury by accident on March 17, 1949, has previously been established at $208 and that said finding is final, res judicata and binding upon all parties hereto.
'2. That applicant's average monthly wage at the time of said injury by accident on March 7, 1956, was the sum of $280.13 and this Commission specifically finds that said average monthly wage was a true and accurate indication of applicant's earning capacity.
'3. That on March 7, 1956, applicant was no longer suffering any loss of earning capacity attributable to said accident of March 17, 1949.
'4. That said accident of March 7, 1956, did not result in any permanent residual disability.
'5. That on May 11, 1956, all benefits payable under the August 30, 1950 award, were suspended until final evaluation was held of Case No. AN 5277.
'6. That applicant is no longer suffering any loss of earning capacity attributable to injury by accident on March 17, 1949, and this Commission specifically finds that the compensation for permanent partial disability awarded on August 30, 1950, should be terminated.
'7. That said applicant was fully compensated from and after March 7, 1956, for all temporary disability suffered as a result of said injury on that date.'
[83 Ariz. 395] This case is before us on a writ of certiorari.
At the time petitioner sustained the original injury § 56-957(c) and (d), A.C.A.1939, A.R.S. § 23-1044, was in effect and provided:
'(c) In cases not enumerated in subsection (b), where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, but the payment shall not continue after the disability ends, or the death of the injured person, and in case the partial disability begins after ...