[90 Ariz. 381] Evans, Kitchel & Jenckes, Phoenix, for petitioner.
James D. Lester, Donald J. Morgan, Frances M. Long and Edward E. Davis, Phoenix, of counsel, for respondent Industrial Commission.
Rogge, Rogge & Stark, Tucson, for respondent Leon R. Lloyd.
Petitioner, Phelps Dodge Corporation, has moved for a rehearing urging that we reconsider our decision, Phelps Dodge Corp., Morenci Branch v. Industrial Comm., 367 P.2d 270 (Ariz.1961). A rehearing is not granted to reargue matters determined by the decision. Climate Control, Inc. v. Hill, 87 Ariz. 201, 349 P.2d 771.
Petitioner, however, implies cavalier treatment stating that the Court disposed of the questions presented 'in a summary manner, without fully considering the arguments advanced.' Essentially, petitioner's dissatisfaction is reflective of a problem not without some vexatious aspects. The Constitution requires that the Court's decision be in writing and the ground stated. Art. VI, Sec. 2. Certainly, parties to litigation are entitled to be advised of the reasons persuading the Court to its conclusion. Equally certain, the decision need not contain a seriatim rebuttal of points made or arguments advanced. Enlargements upon the ground of decision ought to be limited to matters where areas of genuine dispute exist.
Lines of distinctions can be drawn. Some cases present problems where principles sought to be applied have not been settled or accepted. These provoke bitter disagreements, and, consequently, often demand extensive analysis and exhaustive discussion. Others, however, simply present the question whether the cause is controlled by one or another of previously announced rules. These do not require extended treatment for the arguments have been recognized and met in former decisions or distinctions sought to be drawn are clearly negatived by objective examination of the holding in the case. Such a case is petitioner's. We said that the questions for determination were not novel. Hence, the case could be and was disposed of summarily.
[90 Ariz. 382] Petitioner's assertion that the disposition 'was without fully considering the arguments advanced' gives us concern. If petitioner means that the decision did not refute each argument advanced in petitioner's brief, petitioner is correct, it did not. Nor was it so intended. But if it is meant that the Court failed ot negotiate with petitioner the subtle course of its reasoning, then there is some justification in the request for reconsideration. We do not discourage applications for rehearing. It is the last opportunity to correct error. But here, it is plain that petitioner was fully understood the first time around.
In principle petitioner's case is uncomplicated. When the Commission determined that Lloyd had sustained a general physical functional disability, as it did on the 10th day of January, 1958, it then became its duty to determine Lloyd's resulting diminution of earning capacity. After a
hearing, on August 13th, 1958 this was done; Lloyd was found totally disabled. Thereafter at petitioner's request a rehearing was held and the Commission on January 13th, 1959, reaffirmed its previous findings and award. The question whether the evidence supports the decision on rehearing finds its solution in an examination of the evidence. It only becomes complicated because of petitioner's erroneous assumptions concerning the law applicable to the facts.
The crux of petitioner's position is its conclusion that 'there is absolutely no competent medical evidence in the record to sustain a finding that Lloyd is totally and permanently disabled to perform any employment.' Petitioner's conclusion contains two false assumptions which permeate and color its arguments and contentions. First, petitioner assumes that medical evidence is necessary to sustain a finding of total disability. Medical evidence is required to establish the nature of injuries and the extent of loss of physical function. Goodyear Aircraft Corp. v. Industrial Commission, 89 Ariz. 114, 358 P.2d 715. Medical evidence, that is, doctors' opinions, suppositions or conclusions from the injuries, is not competent to establish the extent that injuries affect earning capacity.
In the decision we cited to Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160, wherein the point was fully explored. There we said:
'There is a matter of evidence, squarely raised by the appeal, deserving of comment which we mention for the guidance of the Commission: It should be kept in mind that medical evidence is only as to the physical injury or disability and not as to how that affects earnings. The latter issue is wholly outside of the knowledge of the average doctor. * * *' 61 Ariz. 307, 315, 149 P.2d 160, 163.
[90 Ariz. 383] We quoted with approval from Silver King Coalition Mines Co. v. Industrial Commission of Utah, 92 Utah 511, 69 P.2d 608, 612, that:
"Where the ultimate question is not one of loss of bodily function, but actual partial or total disability economically and industrially, * * * the loss of bodily function is only an aid to such ultimate question and the doctors should testify only as to such loss and not ...