Parker v. Walgreen Drug Company, Civil 4816

• Decision Date: 15 October 1945
• Docket Number: Civil 4816
• Parties: ALMA ESTES PARKER, as Administratrix of the Estate of Clyde Doc Estes, Deceased, Applicant, v. Walgreen Drug Company, Defendant Employer, and THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier
• Court: Arizona Supreme Court

162 P.2d 427

63 Ariz. 374

ALMA ESTES PARKER, as Administratrix of the Estate of Clyde Doc Estes, Deceased, Applicant, v. Walgreen Drug Company, Defendant Employer, and THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier

Civil No. 4816

Supreme Court of Arizona

October 15, 1945

APPEAL by Certiorari from an Award of The Industrial Commission of Arizona.

Proceeding by Alma Estes Parker, as administratrix of the estate of Clyde Doc Estes, deceased, to recover the amount of an award of compensation by the Industrial Commission to deceased for permanent partial disability or the commuted present worth of such award. To review an award of the Commission denying the petition, petitioner brings certiorari.

Award set aside.

Mr. Sam J. Head and Mr. Leo T. Stack, for Applicant.

Mr. H S. McCluskey, and Mr. David P. Jones of Counsel, for Respondent, The Industrial Commission of Arizona.

Messrs Ellinwood & Ross, and Mr. William A. Evans, Amicus Curiae.

Stanford C. J. LaPrade and Morgan, JJ., concurring.

OPINION

Stanford, C. J.

On May 9, 1943, Clyde Doc Estes was injured by accident arising out of and in the course of his employment by the Walgreen Drug Company at Prescott, Arizona. On December 1, 1944, an award was made in his favor for temporary total disability in the sum of $ 2,007.75, all of which has been paid, together with an additional award for permanent partial disability for injury scheduled under Sec. 56-957(b), subsections 15 and 21, equal to 55% loss of function of the left leg, in the amount of $ 93.75 monthly for a period of 27 1/2 months, the first payment to be made on December 28, 1944.

Estes died on January 5, 1945, from causes other than his injury. His death occurred before any payments were made under the award last above mentioned.

Thereafter the Industrial Commission tendered to Alma Estes Parker, the administratrix of the estate of Clyde Doc Estes, the sum of $ 115.16 as the amount accrued under the award between the date thereof and date of death, and as being the sole amount payable. Said tender was refused, and the applicant filed her petition with the Industrial Commission to receive for the benefit of the estate the total amount awarded for permanent partial disability, or $ 93.75 per month for 27 1/2 months, or the present worth of said award commuted under the standard rules of the commission in reference thereto. Said petition was denied. Thereupon the applicant filed her petition for writ of certiorari in this court.

Applicant contends that the rights of the petitioner, as personal representative, to receive future payments under the award, or their commuted value is given by the 1941 amendment to Sec. 56-962, Arizona Code Annotated 1939, Laws 1941, c. 30. Prior to the amendment Sec. 56-962 read as follows:

"Compensation not assignable -- Exempt from levy -- Payment to non-residents. -- Compensation, whether determined or not, shall not, prior to the delivery of the warrant therefor, be assignable; it shall be exempt from attachment, garnishment and execution, and shall not pass to another person by operation of law; however, payment to the consular agent, or his representative, of the nation of which a dependent is a resident or subject, of compensation due such dependent residing outside of the United States, any power of attorney to receive or receipt for the same to the contrary notwithstanding, shall be a full discharge of the benefits or compensation, as if made directly to the beneficiary."

The amendment to the same, Chapter 30 of our session laws of 1941 has the heading of

"An Act Relating to Workmen's Compensation; Prohibiting the Assignment or Attachment of Compensation or Payment to Another, Except a Personal Representative or Consular Agent, and Amending Section 56-962, Arizona Code of 1939."

The amendment, following the words "operation of law," is as follows:

". . . except that the amount of compensation payable to a person at the time of his death pursuant to an award of the commission, whether payable in periodic payments or converted to a lump sum, and whether or not the warrant therefor has been issued or delivered, shall, after his death, be paid to his personal representative. . . ."

In the applicant's petition for a writ of certiorari are the following representations:

"1. The payment of compensation in the instant case is not controlled by Section 56-957(b), or any subsection thereof because said Section constituted the basis of the primary award of December 1, 1944, the Commission had exhausted its rights and fully performed its duties thereunder, and the right to receive the compensation thereby awarded was a vested right in Clyde Doc Estes, applicant's intestate, during his lifetime;

"2. The right to receive payment under the award of December 1, 1944, did not terminate on January 4, 1945, with the death of said Clyde Doc Estes, and has not yet terminated, but survives for the benefit of his personal representative under the express provisions of Section 56-962, Arizona Code 1939, as amended by Chapter 30, Laws of Arizona 1941;

"3. That Section 56-962, Arizona Code 1939, as amended by Chapter 30, Laws of Arizona 1941, has direct application to the right of applicant, as the personal representative of the deceased claimant, to receive the amount awarded by the Commission for permanent partial disability under its award of December 1, 1944, and is not confined to such portion thereof as may have accrued between the date of said award and the date of the death of said claim...