Miller v. Industrial Commission

• Decision Date: 20 December 1973
• Docket Number: No. 11243--PR,11243--PR
• Parties: Ralph MILLER, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Kitchell Contractors, Inc., Respondent Employer, Glen Falls Insurance Company, Respondent Carrier.
• Court: Arizona Supreme Court

Page 91

517 P.2d 91

110 Ariz. 229

Ralph MILLER, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Kitchell Contractors, Inc., Respondent Employer Glen Falls Insurance Company, Respondent Carrier.

No. 11243--PR.

Supreme Court of Arizona, In Banc.

Dec. 20, 1973.

Rehearing Denied Jan. 29, 1974.

Gorey & Ely by Stephen S. Gorey, Phoenix, for petitioner.

William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Donald L. Cross, Phoenix, for respondent employer and respondent carrier.

STRUCKMEYER, Justice.

On September 25, 1969, petitioner, Ralph Miller, while employed as a carpenter, fell through a hole during construction of a building, sustaining a severe comminuted fracture of his pelvis extending into the socket of the right hip. The Industrial Commission concluded that petitioner was entitled to compensation for the 22% Resulting loss of use of his right leg, as set forth in A.R.S. § 23--1044B. Petitioner, believing that he was entitled to an award of an unscheduled disability under subsec. C of A.R.S. § 23--1044 for injury to his hip, brought certiorari. The Court of Appeals affirmed the award, Miller v. Industrial Commission, 19 Ariz.App. 280, 506 P.2d 671 (1973). We accepted review. Decision of the Court of Appeals vacated and award of the Industrial Commission set aside.

A.R.S. § 23--1044B, subsec. 21, provides that for the partial loss of use of a leg a claimant is entitled to:

'* * * 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 use of such member, * * * which the partial loss of use thereof bears to the total loss of use of such member * * *.'

For injuries which are not scheduled under 1044B a workman is to be compensated in 1044B, a workman is to be compensated in

'In cases not enumerated in subsection B of this section, where the injury causes permanent partial disability for work, the employee shall receive during such disability compensation equal to fifty-five per cent of the difference between his average monthly wages before the accident and the amount which represents his reduced monthly earning capacity resulting from the disability, 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 the total period of compensation.'

The question presented is whether petitioner must be compensated for the impairment to his hip, an unscheduled injury, or for a scheduled injury, the loss of use of his right leg. The answer to this question can be determined by an examination of the evidence before the Commission and our prior relevant decisions.

Evidence from four doctors, Willard Ergenbright, Clarence Fredell, Thomas Henry and Norman Fee, was taken in this case. All support the conclusion that petitioner sustained a hip disability.

Dr. Ergenbright, who examined petitioner, but, because of a terminal illness, did not testify at any hearing, wrote a letter to the Commission containing this statement:

'He (Miller) has no special abnormality except the right hip which shows some restriction of motion as follows: in measuring forward flexion and backward extension the patient has lost, as measured today, 20 degrees of forward flexion and has lost 30 degrees of backward extension. He has lost 20 degrees of abduction and he has lost 20 degrees of external rotation.'

Dr. Ergenbright also stated that the X-rays of the right hip and pelvis showed 'some thinning of the joint space.' It is plain that Dr. Ergenbright ascribes the restriction of motion of the right leg to the injury of the right hip.

Dr. Clarence Fredell agreed with Dr. Ergenbright, responding to this question: 'As you understand this twenty two per cent disability of the lower extremity * * * that includes not only the leg itself but the hip joint and the pelvis?' with this answer: 'Yes, it does.'

Dr. Norman Fee testified that Miller's complaint of pain when he places his weight on his leg 'was indicative of discomfort in the hip region, the hip joint.' He also testified that when he used the word 'leg' he meant 'that to include the hip joint,' because from his personal interpretation...