McKinney v. Industrial Commission, 5962
| Decision Date | 18 January 1955 |
| Docket Number | No. 5962,5962 |
| Parties | Garrett McKINNEY, Petitioner, v. The INDUSTRIAL COMMISSION of the State of Arizona, and B. F. Hill, F. A. Nathan, and A. R. Kleindienst, members of said The Industrial Commission of Arizona, Respondents. |
| Court | Arizona Supreme Court |
Harold W. Price, Jr., Phoenix, for petitioner.
John R. Franks, Donald J. Morgan, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel, for respondents.
Petition for review of an award of the Arizona Industrial Commission. The petitioner, Garrett McKinney, 46 years of age, while in the employ of a service station operator covered by the Workmen's Compensation Act, A.C.A.1939, § 56-901 et seq., suffered a sprained left ankle by accident arising out of and in the course of his employment. The injury was recognized as compensable. Subsequent to allowance for temporary disability, the commission found permanent disability to be 35 percent functional loss of the use of the left leg and awarded compensation for a scheduled permanent partial disability for 17 1/2 months at $124.50 per month under the provisions of section 56-95(b)(15) and (21), A.C.A.1939, hereinafter referred to as subdivision (b). Long prior to the injury involved herein, petitioner had when approximately eight years of age lot his right leg in a non-industrial accident. At the time of the injury he was gainfully employed with the use of an artificial limb. It is the position of petitioner that the award should have been calculated a a non-scheduled injury under the provisions of section 56-957(d), the pertinent portion of which is now designated as section 56-957(e), A.C.A.Supp.1954, Laws 1953, chapter 55, section 1, and which will be hereinafter referred to as subdivision (e). The problem thus presented is which subdivision of said section 56-957 should be used by the commission in calculating the compensation to which petitioner is entitled.
Section 56-957(e) reads as follows:
'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 disability as it existed at the time of the subsequent injury.'
It will be observed that in using subdivision (b) the commission ignored any previous disability and awarded compensation for a scheduled injury without permitting the award to be influenced by the previous loss of the right leg. The commission's position is that since section 56-957 by its explicit provisions places in the non-scheduled category only those injuries which are not scheduled, subdivision (e) has no application. Our considered view is that such is not the proper interpretation of the entire section 56-957. We must of course find a purpose for each subdivision of the section. This court has held that in the event of multiple scheduled injuries occurring at the same time, our workmen's compensation law properly construed requires that such multiple injuries be removed from the schedule and be compensated by allowing for a non-scheduled disability calculated on a percentage basis. In other words, the extent of the disability is measured by the...
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