Kennecott Copper Corp. v. Industrial Commission of Arizona

• Decision Date: 14 May 1945
• Docket Number: Civil 4768
• Citation: 158 P.2d 887,62 Ariz. 516
• Parties: KENNECOTT COPPER CORPORATION, a Corporation, Successor to Nevada Consolidated Copper Corporation, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of the Industrial Commission of Arizona, and CASTULO G. GARCIA, Respondents
• Court: Arizona Supreme Court

158 P.2d 887

62 Ariz. 516

KENNECOTT COPPER CORPORATION, a Corporation, Successor to Nevada Consolidated Copper Corporation, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of the Industrial Commission of Arizona, and CASTULO G. GARCIA, Respondents

Civil No. 4768

Supreme Court of Arizona

May 14, 1945

APPEAL by certiorari from an award of The Industrial Commission of Arizona.

Award set aside.

Messrs Fennemore, Craig, Allen & Bledsoe, for Petitioner.

Mr. H S. McCluskey, and Mr. David P. Jones, for Respondents.

Morgan J. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan J.

The respondent Castulo G. Garcia, while in the employ of petitioner, was seriously injured in an accident arising out of and in the course of his employment on November 19, 1942. He was aged 33 years, was of limited education, and had spent practically all his mature years working in and about mines. He had a wife and four children dependent upon him, and was earning at the time of the accident $ 186.30 per month. The principal injuries were fractures of the right clavicle, mid-portion of first and second ribs, fracture of the pelvis, and very severe shock. He suffered aggravation of a previously existing unknown heart condition. Applicant was hospitalized and treated until April 4, 1944.

There is no conflict in the evidence. The doctors were of the opinion that the applicant had a 25% general functional disability attributable to the aggravating effects of the accident, and that he would be unable to follow his usual occupation. They gave it as their opinion that he was able to engage in light occupations not requiring more than slight exertion. The applicant's evidence disclosed that he had sought but was unable to find any employment in which he could engage. The medical evidence and the proof on the whole indicate that applicant's condition was stationary and that his physical disability was permanent. An examination of the applicant on June 9, 1944, by three doctors, made at the suggestion of the commission, indicated that applicant complained that his right upper extremity still bothered him. It also appears that during the year preceding this examination his heart condition had been alleviated to some extent.

The applicant was awarded total disability with benefits, under the provisions of Section 56-956, Arizona Code Annotated 1939, Subsection (a), up to April 4, 1944. On the 24th of August the respondent commission made an award effective as of April 4, 1944, giving the applicant a status of temporary partial disability, under Section 56-957, Subsection (a), allowing him compensation of 65% of the difference between $ 186.30 and the wages the applicant is able to earn after April 4, 1944, until the further order of the commission, not to exceed sixty months. There was no finding as to the amount of wages that applicant might be able to earn after April 4th, and no evidence in the record upon which to base such a finding. The commission found that the physical condition of the applicant was and had been stationary since April 4th, that he had completely recovered from personal injuries sustained from the various fractures, that the accident had aggravated a pre-existing heart condition to such an extent as to cause a 25% functional disability, and concluded that he was suffering a temporary partial disability.

The petitioner filed seasonable application for rehearing. In this application it offered to prove by the testimony of a number of doctors who had examined the applicant, and by x-rays, that the disability was permanent. Without hearing any evidence as to this, the commission denied the petition on September 8, 1944, and the petitioner thereupon brought the matter before this court through the usual certiorari proceedings.

Two questions are raised by the petitioner: (1) Where the evidence is uncontradicted that the physical condition of the applicant is stationary and the award so finds, may the commission award compensation upon the basis of continuing temporary partial disability. (2) If so, may the commission award compensation for such partial disability without finding as a basis for its award the amount of wages which the applicant is able to earn after the injury.

The commission asked for a determination of the following issues: (1) What is the procedure provided by law in a non-schedule injury of this nature? (2) When, under the law, is a case stationary? (3) Must the commission, before classifying a disability case as one of partial disability, immediately establish percentage of loss of earning power, or does it have jurisdiction to determine when the evidence is sufficient for that purpose? (4) When a man suffering from a non-schedule injury is discharged as a total disability subject, and the evidence tends to show that he has a permanent partial physical disability, must the commission immediately rate him under the permanent partial disability provision of the statute, or may he be rated as a temporary partial disability case during rehabilitation and until employability is established by competent evidence?

This is a rather large order. The first thing for us to determine is how far we may go in answering the various questions propounded. The right of review of this court on appeal in cases of this character is fixed by Section 56-972, Arizona Code Annotated 1939: The appeal "shall be heard on the record of the commission as certified by it. The review shall be limited to determining whether or not the commission acted without or in excess of its power; and, if findings of fact were made, whether or not such findings of fact support the award under review. If necessary the court may review the evidence." It will be observed that in this appeal we have no general supervisory powers over the commission, and we are limited to three phases: (1) Has the commission acted without or in excess of its power? (2) As a legal proposition, do the findings of fact support the award? (3) Are the findings justified by the evidence? This statement has no relation to the jurisdiction of the superior and supreme courts in a proceeding which may be instituted under Section 56-916, Arizona Code Annotated 1939.

In the case of Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 1106, 137 A. L. R. 740, we considered in a general way the powers and procedure of the commission, and the power of this court in an appeal from an award allowed an injured employee. In the opinion it is pointed out that while the commission is not a court in the strict sense of the term, it is a tribunal having authority to determine questions of fact and apply the existing law thereto in the cases in which it may make awards. Its decisions on awards are reviewable by this court only under the provisions of Section 56-972, supra. The following observations are pertinent:

". . . We have always reviewed such awards upon the same basis as judgments of the superior courts, subject to the special rules as to procedure set forth in the Act. . . . The commission is the only body authorized by law to make an award of compensation under the Act. . . . And even this court, in its revisory power, may only affirm or set aside the award, having no power to modify it. . . ."

Following this, we pointed out that the commission in making these awards is required to consider and determine, first, what are the facts, and second, what is the law upon that state of facts. In making these determinations, the commission applies both common law and equitable principles. Following this it was said:

"We hold, therefore, that the commission in making an award necessarily has the right to consider and make the proper application of the rules of equity, as well as those of the common law, to the facts as found by it. If it errs in its application of these rules its action is subject to review by this court, and while we give great weight to the determination of the commission as to the facts, we have never hesitated to consider the question of whether the law was properly applied to those facts independently, and uninfluenced by the conclusions of the commission."

Inasmuch as the questions mentioned above relate either to the jurisdiction of the commission or the application of the rules of common law and equity, we conclude under the authority of the Red Rover decision that we have jurisdiction to pass upon all issues presented.

A determination of the questions involved require consideration of various provisions of the workmen's compensation act. Section 56-907, Arizona Code Annotated 1939, provides:

"The commission shall have full power, jurisdiction and authority to administer and enforce all laws for the protection of life, health, safety and welfare of employees in every case and under every law, where such duty is not now specifically delegated to any other board or officer, . . . ."

From other portions of the act we find that the allowance of compensation to workmen coming within the terms of the law is vested exclusively in the commission. As stated in the Red Rover case, the commission is the only body authorized by law to make an award of compensation. The act does not in terms give the commission continuing power over its awards except in cases coming within the provisions of Section 56-967, Arizona Code Annotated 1939. Thus, where an award has been made in favor of an employee, the commission is specifically given power, upon a proper application to increase or rearrange the compensation. While this court has never had occasion to pass directly upon the jurisdiction of the commission with respect to continuing powers over awards not within the...