Camis v. Industrial Commission, 1

• Decision Date: 25 October 1966
• Docket Number: No. 1,CA-IC,1
• Citation: 4 Ariz.App. 312,420 P.2d 35
• Parties: Leroy C. CAMIS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Henry C. Beck Co., Respondents. 90.
• Court: Arizona Court of Appeals

Page 35

420 P.2d 35

4 Ariz.App. 312

Leroy C. CAMIS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Henry C. Beck Co., Respondents.

No. 1 CA-IC 90.

Court of Appeals of Arizona.

Oct. 25, 1966.

James R. Cropper, Phoenix, for petitioner.

Robert K. Park, Chief Counsel, by Glen D. Webster, Phoenix, for respondents.

CAMERON, Judge.

This is a writ of certiorari to review the lawfulness of an award of the Industrial Commission of Arizona.

The Commission determined that petitioner had suffered a permanent partial disability equal to a 50% Loss of function of the right (major) arm, and was entitled to a scheduled award as provided by 23--1044 A.R.S. Petitioner asks this Court to declare that the Commissioner is required, when a disability may be classified under either of two alternative scheduled disability provisions, to make the award which is of greater monetary benefit to the petitioner.

The facts necessary for a determination of this case are not disputed. Petitioner was working as a carpenter on 30 October 1963, when a scaffolding broke and he fell to the ground catching his full weight on his out-stretched hand and arm. This resulted in a telescoping type fracture at the wrist. ¹

Petitioner was treated for the injury and attempts were made by the Commission to provide for physical and psychiatric therapy, as well as vocational rehabilitation. On 11 December 1964, the Commission issued a finding and award for scheduled permanent disability, finding that he had suffered a partial disability equal to a 50% Loss of function of the right arm, which entitled him to compensation for thirty months in the amount of $349.48 monthly. This computation was based on 50% Of the average monthly wage of petitioner prior to the injury, for one-half of the total number of months allowed for a scheduled injury resulting in the loss of use of the arm, pursuant to 23--1044, subsec. B(13) and (21) A.R.S.

The petitioner timely protested and filed a petition for rehearing. It is petitioner's contention that he has sustained 100% Loss of use or disability of the right hand, which would entitle him to 50 months of payments pursuant to 23--1044, subsec. B(12) and (21) A.R.S., rather than the thirty months of payments he was awarded. The computation urged by petitioner would result in an award of $349.48 per month for 50 months.

Hearing was held pursuant to petitioner's request 14 July 1965, and 21 October 1965. There being no objection to matters in the file, they may be considered by the Commission and by this Court on appeal. Salmi v. Industrial Commission, 3 Ariz.App. 411, 415 P.2d 126 (1966). The report of the medical consultation held 18 November 1964, concluded as follows:

'As a result of the injury sustained in the accident of 10/30/63 it is the opinion of the consultants that the residual permanent disability attributable to those injuries is confined to the impaired function of the right upper extremity and is equivalent to approximately 50% Functional loss of the right arm.'

Three members of two of the medical consultation boards were made available to petitioner for cross-examination at the hearing. James R. Moore, M.D., testified:

'Question--Now if we were to say that we were not taking the whole arm into consideration, what would you estimate Mr. Camis's disability as far as his hand is concerned? * * *

'Answer--He would have had probably approximately 55% Or a little more of the hand.'

Jack O. Hubbard, M.D., answered:

'Oh, I would estimate, I think, in the 50 to 60% Range. I would say 60% Maximum.'

Leo L. Tuveson, M.D., testified:

'Well, I would say he would probably have 70 or 75% Functional loss of the hand.

'Question--70 to 75% Loss of the hand?

'Answer--That, of course, is only an estimate.

'Question--That is your opinion?

'Answer--That is my opinion.

'Question--So, Doctor, when the 50% Rating was applied in this matter, the whole extremity was taken into consideration, is that correct?

'Answer--Yes.'

The report of the Referee to the Commission states as follows:

'BASIS FOR CONCLUSIONS AND RECOMMENDATIONS: There was no evidence to support the allegations contained in claimant's petition. Each of the Doctors testified that the claimant had no more than a 50% loss of function of the right arm. It was my observation listening to the testimony as a layman, that the claimant did not demonstrate more than a 50% loss of function of the arm.

'In answer to questions by the claimant's attorney, all the Doctors agreed that if the disability were confined in the hand alone, it would exceed a 50% Functional loss. However, since the hand constitutes only a portion of the arm, it can readily be seen why the functional loss of the whole arm may be limited to 50%.'

We are dealing in this matter with a scheduled disability; 23--1044 A.R.S. reads in part:

'B. Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five per cent of the average monthly wage for the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule:

'12. For loss of a major hand, fifty months, or of a minor hand forty months.

'13. For loss of a major arm, sixty months, or of a minor arm, fifty months.

'20. The permanent and complete loss of the use of a finger, toe, arm, hand, foot or leg may be deemed the same as the loss of any such member by separation.

'21. For the partial loss of use of a finger, toe, arm, hand, foot, leg, or partial loss of sight or hearing, fifty per cent of the average monthly wage during that proportion of the number of months in the foregoing schedule provided for the complete loss of such member, or complete loss of sight or hearing, which the partial use thereof bears to the total loss of use of such member or total loss of sight or hearing.

'E. In case there is a previous disability, as the loss of one eye, one hand, one foot, or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous...