Brandt & Baker, Yuma, for petitioner.
Donald J. Morgan, Phoenix, for The Industrial Commission of Ariz.; James D. Lester, Edward E. Davis, C. E. Singer, Jr., and Lorin G. Shelley, Phoenix, of counsel.
UDALL, Vice Chief Justice.
[91 Ariz. 2] Certiorari to review an award dated May 26th, 1960, denying compensation to Charles Ray Barnard, petitioner herein. The findings of the respondent Commission were in part as follows:
'9. That said applicant [petitioner] has been able to continue with his work as a supervisor for the insured employer in spite of his pain and suffering on account of the injury and that he has sustained no loss of earning capacity by reason of the disabilities arising from the injury. That he was on a monthly salary as a supervisor and foreman prior to the injury and that he has been able to and is of value to the employer to the extent of the same amount of salary which he has earned continuously since released to do work after injury.
'10. 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 each of the matters set forth in A.R.S. § 23-1044 D, 1956, and full consideration to all other facts and circumstances pertaining to the case.'
Accordingly, the award made was limited to $204.69 representing 'compensation for total disability from March 29, 1959 through April 19, 1959 * * *.'
Petitioner had been employed in Yuma County, Arizona by Sherrill & La Follette, hereinafter referred to as the employers, for approximately eight years prior to the injury. He worked as a supervisor in charge of surveying, land-leveling, ditch maintenance and repairs and irrigation for some six to eight thousand acres of land.
Prior to his accident petitioner worked seven days a week and approximately nine hours a day for his employers. For this he received a salary of $400 per month, a fourroom dwelling with all utilities furnished as well as gas, oil and repairs for his automobile.
While in the course of his employment a car in which petitioner was riding was involved in a collision whereby petitioner received whiplash injuries to his neck and back. The accident caused permanent injury,
i. e., inflammation of the nerve route (radiculitius) at the C-8 level of the spine. This in turn aggravated an old arthritic condition. As a result petitioner sustained a restriction in the range of motion of the neck, and now experiences difficulty in looking from side to side. He also complains of intermediate aching of the neck and head and diminution in sensation or feeling in the middle left finger.
Based upon the injuries thus sustained the medical advisory board recommended a 15% permanent partial disability. The Commission found that said applicant had [91 Ariz. 3] suffered a 15% general physical functional disability as a result of said injury.
The record shows the injuries affected petitioner's work in that whereas he previously worked nine hours a day, his working day was cut to four or five hours after the accident and his efficiency was impaired. The foreman of the ranch and one of the employers estimated there was a 50% decrease in petitioner's efficiency after the accident.
Upon being discharged from the hospital petitioner was returned to his employment at the same wage that he received prior to the accident. Employer Sherrill testified that petitioner was kept on the job at the same salary up to the time of the hearing because of his long employment with the company and because of the fact that petitioner was his (Sherrill's) uncle.
After the Commission had made its award, holding that since petitioner had been continued at the same salary his services were of equal value to his employer after the accident as before and hence no loss of earning capacity was involved, a motion for a rehearing was timely filed and a hearing conducted on the 10th day of December 1960. On the 3rd day of March, 1961, the Commission affirmed its prior award.
The petitioner contends that the Commission acted without jurisdiction in its findings and award, and that the findings and award are not supported by the evidence.
In refutation of petitioner's position the Commission claims (1) that when an employee returns to his former work under the same contract of hire and performs labor of a value to the employer equal to the wages which he previously received he has suffered no loss of earning power, and (2) that the 'gratuity' in after-injury wage payments was not proven by a preponderance of the evidence. Petitioner spent about 25% of his time in the performance of engineering work. He took a $100 per ...