Ossic v. Verde Central Mines

• Citation: 49 P.2d 396,46 Ariz. 176
• Decision Date: 23 September 1935
• Docket Number: Civil 3628
• Parties: GEORGE OSSIC, Petitioner, v. VERDE CENTRAL MINES, Defendant Employer, INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents
• Court: Supreme Court of Arizona

49 P.2d 396

46 Ariz. 176

GEORGE OSSIC, Petitioner, v. VERDE CENTRAL MINES, Defendant Employer, INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents

Civil No. 3628

Supreme Court of Arizona

September 23, 1935

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award set aside.

Mr Burt H. Clingan, for Petitioner.

Mr. Don C. Babbitt and Mr. Emil Wachtel, for Respondent Industrial Commission.

OPINION

LOCKWOOD, C.J.

George Ossic, hereinafter called petitioner, was seriously injured while in the employ of the Verde Central Mines, a corporation, hereinafter called the company, and made application to the Industrial Commission of Arizona hereinafter called the commission, for compensation. There was no dispute that he was injured by an accident arising out of and in the due course of his employment, the only matter requiring serious consideration by the commission being as to the extent of his injuries and the amount of the compensation. He was given the best of medical care for a period extending over approximately four years and was allowed compensation on the basis of total temporary disability, at the end of which time the physicians for the commission stated that everything possible had been done to restore him to health; that his condition had become static and that a final disposition should be made of the case. On the 16th day of March, 1934, the following findings and award were made by the commission:

"1. That the above-named applicant, while employed in the State of Arizona by the above-named defendant employer, who was insured against liability for compensation under said law by the above-named defendant insurance carrier, sustained an injury by accident arising out of and in the course of his said employment on February 21, 1930, which injury caused temporary disability entitling said applicant to compensation therefor in the total sum of $6,536.18, of which $6,505.29 has been paid.

"2. That said injury caused also a permanent partial disability equal to the loss of use of the left eye, entitling the applicant to compensation therefor in the sum of $103.46 monthly for a period of twenty-five months.

"3. That said injury caused a further permanent partial disability by reason of loss of teeth and facial disfigurement entitling the applicant to compensation therefor in the sum of $103.46 monthly for a period of eighteen months.

"4. That said injury caused also a general permanent partial disability equal to fifteen per cent of total permanent disability entitling the applicant to compensation therefor in the sum of $15.52 monthly during the period of disability, the first payment to be made on June 13, 1936.

"5. That the applicant has received advances against the above mentioned compensation for partial permanent disability in the sum of $1,450.00.

"Award

"Award is hereby made payable to said applicant by the named defendant insurance carrier as follows:

"1. The sum of $62.46 payable forthwith.

"2. The additional sum of $103.46 monthly for a period of 26 months, the first payment to be made on April 13, 1934; and the additional sum of $15.52 monthly during the period of disability, the first payment to be made on June 13, 1936.

"It is ordered that any payments of compensation heretofore made on account of said injury are to be credited upon this award; that any party aggrieved by this award may apply for rehearing of the same, by filing application therefor at the office of this Commission, within twenty days after the service of this award as provided by the rules and regulations of this Commission; and that jurisdiction be, and it is hereby, reserved to alter, amend or rescind this award upon good cause."

Petitioner made an application for rehearing which was denied by the commission on the ground that the application had not been made in time. This refusal to grant a rehearing came before us on certiorari, and we held in the case of Ossic v. Industrial Commission, 44 Ariz. 366, 37 P.2d 401, that petitioner was entitled to a rehearing on the award of March 16, 1934, and that award was set aside. In accordance with such order of the court a rehearing was granted by the commission at which evidence was taken and on March 2, 1935, the commission again affirmed its findings and award of March 16, 1934, as above set forth, and it is this last award which has been brought before us in this proceeding.

It is the contention of petitioner (a) that the finding and award of the commission that his temporary total disability has ceased is contrary to the evidence; and (b) that if the temporary disability has ceased so that his condition has become static, it is one of permanent total disability and not of disability to the extent of 15 per cent. of total permanent disability, as found by the commission; and (c) that even if his condition be one of partial permanent disability, the computation of the extent of such disability was not legally made.

In order to determine these questions it is necessary that we first state the facts in the case, giving the evidence a construction most favorable to the findings of the commission, as under our oft-repeated rule we must, and then determine whether the commission properly applied the law to these facts. Petitioner on the 21st of February, 1930, was a mine foreman in the employ of the company. He was at that time a man thirty-seven years of age, in robust health, and experienced and skillful in his occupation, but was, generally speaking, uneducated and unable to do any work outside of mining except unskilled manual labor. At the time of his injury he was unloading certain material with a hand winch which in some way got out of control, the handle flying back and striking him on the face, badly mangling and, in fact, almost destroying the tissues on the left side of the face, his jaw bone, his teeth, and the roof of his mouth. He was immediately taken to the hospital and was given the best possible medical treatment both in Arizona and later by specialists in Los Angeles, but while his life was saved, he lost the use of his left eye entirely, many of his teeth were knocked out, the roof of his mouth was destroyed, and the lower part of his face was terribly disfigured. After some four years of treatment, most of his physicians concurred in a report that it was very unlikely medical and surgical treatment could improve his condition, though his sinuses were apparently in such a condition that they needed continual irrigation and cleansing to prevent a spreading of an infection, his speech was permanently impaired, and his mastication of ordinary foods seriously interfered with. The concensus of opinion of the medical experts was that in addition to and exclusive of the disability caused by the loss of the use of the left eye and that caused by facial disfigurement and loss of teeth, there was a general permanent partial disability equivalent to 15 per cent. of total permanent disability. The award was then made on the basis of temporary total disability up to the time when the physicians reported his condition had become static and a further award was made (a) of compensation for the loss of use of an eye at $103.46 per month for twenty-five months; (b) compensation for the loss of teeth and facial disfigurement at $103.46 for eighteen months; and (c) a permanent partial disability allowment of 15 per cent. of what would have been due for permanent total disability, being an award of $15.52 so long as such permanent partial disability existed.

We consider first the question as to whether the commission was justified in finding that petitioner's condition had become static so that they were entitled to change the award from a temporary to a permanent one. Most of the medical witnesses agreed that his condition as it existed on March 16, 1934, would probably remain practically the same during his lifetime. The compensation act (Rev. Code 1928, § 1391 et seq.) contemplates that when an employee is injured from an accident arising out of and in the due course of his employment he shall receive temporary disability compensation until such time as his condition becomes static, at which time if there be any continuing disability, it shall be considered permanent and future compensation shall be awarded him on that basis. The rate and period of the compensation for both temporary and permanent disability is set forth in section 1438, Revised Code 1928. The commission made an award originally on the basis of temporary total disability, and there is no complaint by petitioner of this award or the payments thereunder up to the time of the award of March 16, 1934. Although it is his contention that his temporary total disability still continues, we are of the opinion the commission was justified in finding under the evidence that the temporary condition had become a permanent one, so that future payments should be based upon those provisions of the section applying to permanent and not to temporary disability. The vital question, however, is on what basis the award for permanent disability should be made under the circumstances set forth above. Permanent disability may be either total or partial. If it be total, the compensation is fixed by section 1438(b), supra, as follows:

"In cases of total disability adjudged to be permanent compensation of sixty-five per cent of the average monthly wage, during the life of the injured person.

"Disability caused by the following specified injuries, in the absence of proof to the contrary, shall be deemed total and permanent: 1. The total and permanent loss of sight of both eyes; 2. the loss by separation of both feet; 3. the loss by separation of both hands; 4. an injury to the...