Ronquillo v. Industrial Commission

• Decision Date: 11 November 1971
• Docket Number: No. 10593--PR,10593--PR
• Citation: 490 P.2d 423,107 Ariz. 542
• Parties: Reynaldo B. RONQUILLO, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Martin Construction Company, Respondent Employer, State Compensation Fund, Respondent Carrier.
• Court: Arizona Supreme Court

Page 423

490 P.2d 423

107 Ariz. 542

Reynaldo B. RONQUILLO, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent Martin Construction Company, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 10593--PR.

Supreme Court of Arizona, In Banc.

Nov. 11, 1971.

Rehearing Denied Dec. 7, 1971.

Lawrence Ollason, Tucson, for petitioner.

Donald L. Cross, Former Chief Counsel by William C. Wahl, Jr., Chief Counsel, Phoenix, for respondent.

Robert K. Park, Chief Counsel, Phoenix, by Dee-Dee Samet, Tucson, for respondent carrier.

CAMERON, Justice.

Pursuant to Rule 47, subd. b, Rules of the Supreme Court, 17 A.R.S. and § 12--120.24 A.R.S., we granted a petition for review of the decision of the Court of Appeals reported in 14 Ariz.App. 499, 484 P.2d 652 (1971), which affirmed an award of the Industrial Commission of Arizona finding that the petitioner was entitled to a 'scheduled' award (§ 23--1044, subsec. A and subsec. D A.R.S.), rather than an 'unscheduled' award (§ 23--1044, subsecs. C, D, and E A.R.S.). ¹

We are called upon to determine whether a scheduled permanent partial disability when considered with a prior industrially related permanent partial scheduled injury must result in an unscheduled award.

The facts necessary for a determination of this matter are as follows. In 1959, petitioner suffered an injury to his right second finger which resulted in a finding and award for a 20% Permanent partial disability. This award was issued and became final in 1960. In 1962, the petitioner suffered a second industrial injury to his left leg in a fall. There was a question of aggravated hypertension which was previously considered by the Court of Appeals and resulted in the award being set aside. See Ronquillo v. Industrial Commission, 5 Ariz.App. 233, 425 P.2d 135 (1967). After reconsideration by the Commission, the Commission issued its award and finding that the petitioner was entitled to a scheduled disability for a 50% Loss of function of the left leg as a result of the 1962 injury. Petitioner brought a writ of certiorari to the Court of Appeals contending that because of the prior disability he should receive an unscheduled rather than a scheduled award. The Court of Appeals affirmed the Industrial Commission and we granted review.

In Wollum v. Industrial Commission, 100 Ariz. 317, 414 P.2d 137 (1966), we discussed a situation wherein a workman had a previous non-industrial injury consisting of an amputation of the distal phalanx of his left index finger. The fingertip had been amputated as the result of an injury suffered when petitioner Wollum was eight years old. He later suffered a 15% Functional loss to the right leg and the Industrial Commission treated the award as scheduled rather than unscheduled. We stated in that opinion as follows:

'If multiple scheduled injuries are received at the same time, the Commission must determine the effect of the entire disability, removing them from the schedule and measuring the extent of disability by the total effect upon earning capacity. Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396. If two scheduled injuries are received at different times, and the first hearing resulted in an award, the Commission is directed to determine the entire disability as it exists after the second injury, removing them from the schedule, the presumption being that the condition shown to have existed in the former proceedings at the time of the first scheduled injury continued until the time of the second injury; in the absence of evidence to rebut this presumption the Commission must determine compensation by measuring the extent of disability by the total effect on earning capacity. Hurley v. Industrial Commission, 83 Ariz. 178, 318 P.2d 357.

'A.R.S. § 23--1044, subsec. E, in speaking of previous disability, does not require that such disability be the result of a prior 'industrial accident, either scheduled or unscheduled. McKinney v. Industrial Commission, 78 Ariz. 264, 278 P.2d 887. But, if the prior disability arose through other than a prior industrial...