Matlock v. Industrial Commission, 5287

• Decision Date: 08 March 1950
• Docket Number: No. 5287,5287
• Parties: MATLOCK v. INDUSTRIAL COMMISSION.
• Court: Arizona Supreme Court

Page 612

215 P.2d 612

70 Ariz. 25

MATLOCK v. INDUSTRIAL COMMISSION.

No. 5287.

Supreme Court of Arizona.

March 8, 1950.

Mack Arthur Matlock, in personam.

H. S. McCluskey, of Phoenix, attorney and Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondent.

DE CONCINI, Justice.

This is an appeal by certiorari from an award of the respondent Industrial Commission of Arizona, hereinafter called the commission. M. A. Matlock, hereinafter called the petitioner, contends that the commission, defendant insurance carrier herein, erred in its final findings and award.

Petitioner suffered an injury arising out of and in the course of his employment with Thomas G. Beaham (Double X Ranch). The accident occurred on August 19, 1946, when a horse fell on petitioner, while he was attempting to rope a calf, resulting in injuries to his right shoulder, right side and pelvis. The commission awarded him accident benefits and compensation for temporary disability up to and including August 19, 1949. In the Final Findings and Award of September 24, 1949, the commission refused to allow petitioner any compensation for permanent partial disability to which the petitioner claims he is entitled. The petitioner also complains of the commission's finding as to his average monthly wage.

It is well established that in reviewing an award of the commission, our review is directed toward determining whether or not the commission acted within its powers, its findings support the award, and the award and findings are supported by the evidence. Section 56-972, A.C.A.1939; Kennecott Copper Corp. v. Industrial Comm., 62 Ariz. 516, 158 P.2d 887.

The first contention urged by the petitioner is that the fifth finding of the commission, to-wit: 'That the average monthly wage of said applicant immediately prior to said personal injury was the sum of $144.83', is erroneous. It is undisputed that the wage of the petitioner consisted of a salary of $125 per month plus a house, utilities, milk, butter, eggs, and meat whenever cattle were slaughtered, for petitioner, his wife and three children. The commission in its finding that the average monthly wage of petitioner was $144.83, thus valued the house, utilities, butter, eggs and meat at $19.83 per month. It is clear that the commission based this figure upon the employer's valuation thereof for premium purposes. There is no evidence in the record to support this finding. On the other hand, the evidence discloses that the above-mentioned elements have a value greatly in excess of $19.83 per month. On rehearing, the commission therefore, must correct this erroneous finding and determine the true value of the aforesaid items; since under section 56-972, A.C.A.1939, of the Workmen's Compensation Law, we may only enter judgment affirming or setting aside an award but may not modify it.

Petitioner's other contention is that the commission incorrectly refused to award him compensation for permanent partial disability. The findings of the commission and the evidence before us in the record do not support the final award of September 24, 1949.

The medical reports show that the doctors rate the petitioner as having at least 10% and some even as high as 50% general physical functional disability as a result of the accident. The evidence thus supports the finding of the commission that petitioner has a 10% general physical functional disability as a result of the said injury by accident.

We are aware that under section 56-957(d), A.C.A.1939, this percentage of general functional disability is only one of the factors which must be considered by the commission in awarding compensation to injured employees for loss of earning power. Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160. We also recognize that under certain circumstances, such a general physical disability could conceivably not affect the earning power of an injured claimant. Hoffman v. Brophy, supra. However, there not being any finding that petitioner has suffered no loss of earning power, the existing findings do not support the award, and it must therefore be set aside unless the record discloses other evidence consistent with such a denial of further compensation.

Under section 56-957(c), A.C.A.1939, and our decisions interpreting it, the applicant in non-scheduled or 'odd lot' cases, as is the case here, must show loss of earning power in order to be entitled to compensation. Hoffman v. Brophy, supra; Lee Moor Contracting Co. v. Industrial Comm., 61 Ariz. 52, 143 P.2d 888; Savich v. Industrial Comm., 39 Ariz. 266, 5 P.2d 779. The evidence...