Charles W. ALLEN, Petitioner,
INDUSTRIAL COMMISSION of Arizona and Baum & Adamson Tire & Automotive Service, Respondents.
[87 Ariz. 58] Boyle, Bilby, Thompson & Shoenhair, Tucson, for petitioner.
John R. Franks, Phoenix, Donald J. Morgan, James D. Lester, frances M. Long and Edward E. Davis, Phoenix, of counsel, for respondent Industrial Commission.
In this cetiorari proceeding to review the final award of The Industrial Commission of Arizona (hereinafter called the 'Commission'), petitioner does not dispute the award of temporary benefits but claims that he is entitled to a permanent award in the statutory amount scheduled for his injuries, and, in addition, to an award based on his loss of earnings to the extent such loss exceeds the scheduled compensation. The Commission contends that decisions of this Court foreclose it from awarding pititioner the scheduled summs and that petitioner the scheduled sums and that capacity.
On June 1, 1956, petitioner was employed by Baum & Adamson Tire & Automotive Service as a service salesman. At that time he was 36 years old and had been employed by that company for about nine years. His duties consisted primarily of making scheduled calls on commercial accounts to sell tires, other equipment and services, and, at times, to change tires on automobiles or trucks belonging to customers.
The accident occurred when petitioner was inflating a tire in the process of mounting it on a trailer of a customer. The tire blew up and split the wheel, fracturing his right hand and injuring his right eye. Petitioner thereafter underwent medical treatment until February 12, 1958, at which time his condition was found to be stationary.
At that time petitioner's right eye had been enucleated. He also sustained a 30% permanent partial functional disability of
his right or major hand which had three particular results: his grip was weaker and more limited (it was estimated that the grip of his right hand was 35 to 40 pounds less than before the accident); his fingers were deformed and snapped when in use; and the dexterity of his fingers was reduced as the result of limitation of motion in his finger and knuckle joints.
Petitioner returned to work on a part time basis in August 1956 performing light office work and some selling. Since the spring of 1958 petitioner has been working full time, at his previous salary, performing substantially the same duties as before the accident but changing fewer tires. Petitioner[87 Ariz. 59] testified that, mainly because of the loss of his eye, which affected his depth perception, he was unable to do his work as efficiently as before. The doctor and petitioner's employer testified at the Commission hearing that petitioner could do the same work but not as well, as easily, as quickly or to the same degree as before the accident.
The employer stated that in his opinion petitoner's injury affected his future with the company with respect to raises or promotions and that but for the accident petitioner would by August 1958 have been earning $100 more per month than his then salary. The employer further testified that in his view petitioner would have little or no chance to be employed by other similar companies, that his own company would in fact not hire a man in the condition of petitioner, and that although the employer had lost something financially as far as petitioner was concerned, it was the company's policy to keep disabled workers on the job at the same pay.
The Commission found that petitioner's injuries resulted from an accident occurring on June 1, 1956, which arose out of and in the course of his employment, that his physical condition became stationary on February 12, 1958, and that because petitioner sustained multiple scheduled injuries, compensation had to be awarded, pursuant to A.R.S. § 23-1044, subd. C, as if such injuries were unscheduled. The Commission further found
'10. That said applicant returned to work for the above-named defendant employer at the same rate of pay as that received prior to said injury by accident of June 1, 1956, so, therefore said applicant is suffering no loss of earning capacity attributable to said accident.
'11. That in determining that applicant has no reduced monthly earning capacity as a result of his injury by accident, this Commission has given full consideration to applicant's present earning capacity, age, education, physical condition, previous work history, the nature of his injuries, his work history subsequent to said accident, and full consideration to all other facts and circumstances pertaining to the case.'
Under our workmen's compensation statute (A.R.S. Title 23, Chapter 6), an employee is entitled to temporary compensation for injuries arising out of his employment so long as his condition is not stationary. When his condition becomes stationary and the disability suffered is classified as permanent, the employee is entitled to benefits dependent on whether the permanent disability is deemed total or partial.
A permanent total disability is compensated at 65% of the average monthly wages, paid during the lifetime of the injured employee,[87 Ariz. 60] A.R.S. § 23-1045, subd. B. Certain disabilities are deemed total and permanent, in the absence of proof to the contrary; such as, loss of sight of both eyes, loss or paralysis of both feet or hands or the combination thereof, and skull injuries resulting in incurable imbecility or insanity (A. R.S. § 23-1045, subd. C). A.R.S § 23-1045, subd. D provides:
'The enumeration in this section is not exclusive, and in all other cases permanent total disability shall be determined in accordance with the facts.'
A permanent disability which is partial is compensated on the basis of 55% of the average monthly wage of the injured
employee in accordance with two distinct tests. A.R.S. § 23-1044, subd. B specifies certain injuries which are deemed to result in permanent partial disability and entitle the employee, without more, to 55% of his average monthly wage for a specified number of months. These injuries, referred to as 'scheduled', include loss of fingers, toes, hand, arm, foot, leg, eye-sight and hearing. Partial loss of use is compensated at 50% of the average monthly wage for a number of months proportionate to the extent of the loss. Permanent disfigurement of the head or face may be compensated in a sum to be fixed by the Commission for a period up to 18 months.
Subsection C of A.R.S. § 23-1044 provides that permanent partial disability for work caused by injuries not enumerated in subsection B are to be compensated at 55% of the difference between the employee's
'average monthly wages before the accident and the amount which represents his reduced monthly earning capacity resulting from the disability,'
with such compensation to cease when the disability ends or the employee dies.
In determining the reduced monthly earning capacity, the Commission is to consider, 'among other things', the employee's previous disability, his occupational history, the nature and extent of his physical disability, the type of work he is able to perform, wages received for work performed subsequent to the injury, and his age at the time of the injury. A.R.S. § 23-1044, subd. D. Where there is a previous disability, the percentage thereof at the time of the subsequent injury is deducted from the total disability to determine the percentage for the subsequent injury (A.R.S. § 23-1044, subd. E).
Pursuant to A.R.S. § 23-1044, subd. F, added in 1953 (Laws 1953, chapter 55), compensation for the above 'unscheduled' injuries shall be determined 'not later than nine months from the time the physical condition of ...