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Woods v. Industrial Commission

Supreme Court of Arizona

February 15, 1962

Delano Allen WOODS, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona and Phoenix Flasher Company, Respondents.

In Banc.

Shimmel, Hill, Kleindienst & Bishop and Richard A. Black, Phoenix, for petitioner.

Edward E. Davis, Phoenix, Donald J. Morgan, James D. Lester, C. E. Singer, [91 Ariz. 15] Jr., and Lorin G. Shelley, Phoenix, of counsel, for Industrial Commission of Arizona.

JENNINGS, Justice.

Delano Allen Woods, hereinafter called petitioner, received an injury when he caught his right hand in a punch press while operating the same in the course of his employment with the Phoenix Flasher, Inc. As a result petitioner suffered a 50% loss of the right ring and long fingers by amputation and a 10% functional loss of the index finger.

After medical discharge from his industrial injury, petitioner was able to adapt and perform all of the duties previously performed by him. Consequently his employer continued to pay him an average monthly wage equal to that which he had prior to the injury.

Many years ago petitioner fell from a tree which resulted in a traumatic paraplegia in the upper dorsal region necessitating amputation of both legs at his thighs.

The Commission entered its findings and award for unscheduled permanent partial disability and found as a result of his combined injuries petitioner suffered no loss of earning capacity.

Petitioner filed timely protest of the award followed by petition and application for rehearing which the Commission denied.

Petitioner's single assignment of error is that the Industrial Commission erred in classifying petitioner's injuries under A.R.S. § 23-1044, subds. C, D and E, [1]

Page 759

being the so-called 'odd-lot' classification, instead of properly classifying the disability under A.R.S. § 23-1044, subd. B, [2] known as the 'scheduled' injuries classification.

[91 Ariz. 16] Therefore the sole issue on appeal is whether the Commission erred in applying A.R.S. § 23-1044, subds. C, D and E to the facts of petitioners' claim.

In the instant case the industrial injury consisted solely of the specified scheduled type. However, the Commission based its award on the theory that the previous existing condition of the petitioner (i. e. the thigh amputation) constituted a previous existing disability and consequently this disability coupled with the industrial functional finger loss placed petitioner's case categorically in the unscheduled class. We agree with the Commission's ruling.

This Court has on many occasions interpreted A.R.S. § 23-1044, subds. C, D, and E, supra. Hurley v. Industrial Commission, 83 Ariz. 178, 318 P.2d 357; Morris v. Industrial Commission, 81 Ariz. 68, 299 P.2d 652; McKinney v. Industrial Commission, 78 Ariz. 264, 278 P.2d 887; but Cf. Goodyear Aircraft Corp. v. Industrial Commission, 89 Airz. 114, 358 P.2d 715. All of these cases bear out the Commission's position, i. e., they require the Commission to take into consideration a previous disability as it exists at the time of a subsequent injury, and if any disability results from the subsequent injury, whether scheduled or unscheduled, or both, the Commission must treat the disabilities as general or unscheduled in nature, and base its award on loss of earning capacity only, as derived from the facts of the case. Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396; Ujevich v. Inspiration Consolidated Copper Company, 42 Ariz. 276, 25 P.2d 273.

The facts of the instant case are directly parallel to those of the McKinney case, supra. In that case this Court held that the petitioner's prior loss of a leg even though not caused by industrial accident must be considered as a previous disability. At that time the Commission urged upon this Court the ...


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