Hoffman v. Brophy
| Decision Date | 22 May 1944 |
| Docket Number | Civil 4681 |
| Citation | 61 Ariz. 307,149 P.2d 160 |
| Parties | PAUL HOFFMAN, Petitioner, v. PAUL M. BROPHY, Respondent-Employer, THE INDUSTRIAL COMMISSION OF ARIZONA; RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of and Constituting the Industrial Commission of Arizona, Respondent-Insurers |
| Court | Arizona Supreme Court |
APPEAL by certiorari from an award of the Industrial Commission of Arizona. Award set aside.
Messrs Cox and Cox and Mr. Lloyd E. Canfil, for Petitioner.
Mr Alfred C. Lockwood, for Respondent-Employer.
Mr. H S. McCluskey and Mr. Fred O. Wilson, for Respondent-Insurers.
The petitioner, Paul Hoffman, on February 15, 1940, while working for Paul M. Brophy on a farm near Casa Grande, Arizona, was injured in an accident compensable under the Workmen's Compensation Law (Chapter 56, Article 9, Arizona Code Annotated 1939). The respondent employer carried industrial insurance with the Industrial Commission of Arizona, as insurance carrier.
Timely application was made by the petitioner to the Industrial Commission for compensation, and on June 28, 1940, it awarded him compensation for temporary total disability. Petitioner protested the award and the Commission made amended awards and findings on May 3, 1943, May 24, 1943, and September 9 1943. The third amended award, made on the date last stated, recited that compensation for the temporary total disability had been fully paid, and then found "said injury caused also a permanent partial disability equal to 25% of a permanent total disability, entitling said applicant to compensation therefor in the sum of $7.63 monthly during the life of said applicant." The award was in accordance with this finding and the petitioner being dissatisfied therewith has bought them before this Court for review.
Petitioner attacks the award in this case on three grounds: (1) That the findings are legally insufficient to sustain it, (2) that the commission used an illegal method in evaluating the evidence and determining the ultimate facts, and (3) that the evidence, properly considered, is insufficient to sustain the findings.
The accident in which petitioner was involved occurred while he was loading commercial fertilizer. He fell from a trailer onto the trailer hitch, striking his lower back and spine, causing bruises and contusions in the lumbar region of the back. While the X-ray disclosed no visible fracture, there was definite evidence of injury to the twelfth dorsal vertebra. The injured man was first treated by a doctor at Casa Grande, and the next day he was removed by ambulance to the Pinal County Hospital at Florence, where he remained for some seventeen days.
Between the date of the injury and the final award the petitioner was treated or examined by some fourteen reputable physicians, several of whom were of his own choosing. Numerous X-rays were taken, pathological laboratory tests made, and all that modern medical science could do for him was done, at the expense of the Commission. A Medical Rating Board, paid by the commission, but chosen in part by the petitioner or his attorney, first gave him a "functional physical disability" rating of 5%, and later on this was increased to a 25% disability.
It appears from the record that the petitioner, who was then forty-eight years of age, enjoyed good health prior to the injury, and was able to do all kinds of heavy manual labor. He stoutly maintains that he has been unable to do any gainful work since the time of the injury, that he suffers pain constantly, that his earnings have been practically nil, and that he has subsisted only by reason of the generosity of relatives and friends, with some aid having been received from public charitable agencies. There is some evidence that he could do light work such as dish washing, poultry raising, etc.
There is a slight conflict as to the amount of the monthly wage paid petitioner prior to his injury; it ranged from $55 to $61, which included an allowance for house rent. While there is no explicit finding by the commission as to his earnings, from the award it can be mathematically determined that the Commission found that his wage was $55.50 per month. There is no finding as to the monthly wage the petitioner was able to earn thereafter.
From the nature of this injury it is readily apparent that it falls under Sec. 56-957, subdivision (c), Arizona Code Annotated 1939, which is the same as what is referred to in the earlier cases as "subdivision (w)" of section 1438, Revised Code 1928. In the law reports this type of injury is frequently referred to as "other cases" or "odd-lot case," as distinguished from the "scheduled injuries" enumerated under Sec. 56-957 (b). The statute, sub. (c) of Sec. 56-957, supra, is clear and unambiguous, and is as follows, viz.:
"In cases not enumerated in subsection (b), where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, but the payment shall not continue after the disability ends, or the death of the injured person, and in case the partial disability begins after a period of total disability, the period of total disability shall be deducted from such total period of compensation."
The statute just quoted states explicitly of what the award shall consist. It is 55% of the difference between the claimant's monthly wages before the accident and the monthly wages he is "able to earn" thereafter. Zagar v. Industrial Commission, 40 Ariz. 479, 490, 14 P.2d 472; Kilpatrick v. Hotel Adams Co., 42 Ariz. 128, 132, 22 P.2d 836; Six Companies, Inc., v. Industrial Commission, 42 Ariz. 501, 27 P.2d 678; Ossic v. Verde Central Mines, 46 Ariz. 176, 188, 49 P.2d 396.
While such a determination may present substantial difficulties due to the fact that it is impossible to determine with mathematical certainty the exact extent of the loss of earning power when it is only partial in its nature, yet the Commission, however, in discharging this duty is not left wholly without guide posts to point the way, for the very next paragraph of the code, subdivision (d) provides:
"In determining the percentage of disability, consideration shall be given, among other things, to any previous disability, the occupation of the injured employee, the nature of the physical injury, and the age of the employee at the time of the injury...."
In the Zagar and Six Companies, Inc., cases, supra, we have held that the true meaning of "percentage of disability," referred to in sub. (d), supra, is "the percentage of disability to earn his former wages [40 Ariz. 479, 14 P.2d 476]."
The objection most vigorously urged here by the petitioner is that the Commission in performing its quasi-judicial function of making this award fell into the error of accepting the percentage of "functional physical disability" fixed by its Medical Rating Board as being identical and controlling as to the "percentage of loss of earnings" suffered by the claimant as a result of the accident. It is further urged that the undisputed testimony of claimant and his witnesses as to "loss of earnings," as well as the other factors referred to under sub. (d), supra, were ignored and no consideration given them by the Commission as triers of the facts. If these charges be borne out by the record then the award must be set aside.
We, of course, are not the triers of the fact, and we adhere to our oft repeated rule that if there is any competent evidence in the record to sustain the action of the Commission, it is conclusive and binding on this Court. Federal Mutual Liability Insurance Co. v. Industrial Comm., 31 Ariz. 224, 252 P. 512. If, however, the award was based and proceeds upon an erroneous and improper theory, the above rule would not preclude us from correcting manifest error and preventing an injustice being done. We need not go beyond the respondent Commission's brief to determine the basis for this award:
"Records No. 13, 14, 16 and 25 conclusively show that the Commission accepted the recommendation of the Medical Board (Record No. 16), and based its findings of 25% disability upon said recommendation (Records 13 and 14), and computed the wage on the basis of $55.50 per month (Record 20)."
"Presumptively this finding of 25% permanent partial disability is founded upon the report dated August 27, 1943, and signed by Chas. N. Ploussard, Louis B. Baldwin and F. M. Kilgard (Record No. 16),...
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Fremont Indem. Co. v. Industrial Com'n of Arizona, 17799-PR
...earning capacity. Expert medical testimony is, however, generally incompetent on the issue of earning capacity. Hoffman v. Brophy, 61 Ariz. 307, 315, 149 P.2d 160, 163 (1944). On the other hand, we have sanctioned testimony on diminished earning capacity by an expert having qualifications s......
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Eagle Indem. Co. v. Hadley
...the nature of the injury, the age of the injured employee at the time of the injury, and the wage before injury. Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160; Kennecott Copper Corp. v. Industrial Commission et al., 62 Ariz. 516, 158 P.2d There being evidence in this case that Hadley was un......
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Phelps Dodge Corp., Morenci Branch v. Industrial Commission
...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, deserv......
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Adams v. Industrial Commission
...express the loss in terms of a percentage of the full functioning of the applicant before the injury occurred. See Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160 (1944). The adoption of the AMA standards by the Industrial Commission was obviously an effort to make such percentage ratings uni......