Sanchez v. Industrial Commission

• Decision Date: 16 April 1964
• Docket Number: No. 7694,7694
• Citation: 96 Ariz. 19,391 P.2d 579
• Parties: Frank SANCHEZ, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Shattuck Denn Mining Corporation, Iron King Branch, Respondents.
• Court: Arizona Supreme Court

Page 579

391 P.2d 579

96 Ariz. 19

Frank SANCHEZ, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Shattuck Denn Mining Corporation, Iron King Branch, Respondents.

No. 7694.

Supreme Court of Arizona, In Division.

April 16, 1964.

Palmer C. Byrne, Prescott, for petitioner.

Lorin G. Shelley, Phoenix, for respondent, Industrial Commission of Arizona. Donald J. Morgan, C. E. Singer, Jr., Ben P. Marshall, and Laurence Davis, Phoenix, of counsel.

Twitty, Sievwright & Mills, Phoenix, for respondent, Shattuck Denn Mining Corp.

STRUCKMEYER, Justice.

This cause arises out of a petition for writ of certiorari by Frank Sanchez to review an award of the Industrial Commission of Arizona. Petitioner sustained an injury to his back on August 6, 1956, while working for Shattuck Denn Mining Corporation as a miner. Petitioner was also a part-time musician, working once a week as a trumpet player. After conservative treatment was unsuccessful, a laminectomy and spinal fusion of petitioner's fifth lumbar and first sacral vertebrae was performed on January 21, 1957. A program of intensive rehabilitation exercises was instituted at Samuel Gompers Memorial Clinic which was terminated because of failure of petitioner to receive any material benefits. Further surgical exploration was performed on November 21, 1958. No abnormalities other than a sound fusion at the site of the previous surgery was found. Some scar tissue was removed.

Because petitioner appeared to be making no progress toward rehabilitation, he was examined by Dr. William B. McGrath, psychiatrist, on March 10, 1959, who made no recommendation for psychotherapy being of the opinion that psychotherapy, like physical therapy, 'will not benefit' petitioner 'unless he wants them to.' Finally, on November 10, 1959, as a predicate to a final award, a hearing was held for the purpose of inquiring into petitioner's present earning capacity.

The medical testimony in general indicated that petitioner had not fully recovered from his injury because he had not put forth the effort necessary to attain a recovery. Petitioner testified that he had from time to time applied for any kind of easy part-time job because he couldn't work a whole day; that while prior to the accident he had worked as a professional musician, he had not since because blowing the trumpet bothered his back.

Subsequent to the hearing, his former employer, the Shattuck Denn Mining Corporation, offered to provide light work in connection with cleaning two small washrooms called 'change rooms'. Petitioner thereafter worked half days only on March 10, 12, 18, 21 and 23 of 1960 and then voluntarily quit the job. At a second hearing held on May 20, 1960, petitioner testified that this work was too difficult but that he applied at the State Employment Service and told them he would like something he was capable of doing considering his injury and the kind of job he would like to get. He also testified that although no doctors had advised him to do so, he was using a cane because his leg was so weak that it gave out on him and that he had tried to play the trumpet but it was too much a strain on his back.

Testimony developed that petitioner had been put under observation by an investigator for the Commission. The investigator's testimony was to the effect that in his own home petitioner did not use a cane but only when he appeared outside his house or in public; that he played a trumpet in an establishment known as 'Bruno's' bar on Saturday nights, being so observed on March 19, 26, and April 2 and May 14, 1960, from the hours of 9:00 p. m. until the bar closed at 1:00 a. m.

Petitioner, when recalled for further examination, admitted playing the trumpet on those occasions but testified at first that he positively received no money for playing the trumpet and later that he received 30, 40 and 50 cents as his share of the kitty but that neither the proprietor of the tavern nor the leader of the band paid him any wages. Finally, in answer to the question:

'Q. And is it your testimony that you have never been paid for this playing?'

he replied,

'A Well, I won't say I got paid for that. As I said, sometimes they give me maybe two or three dollars, * * * or they probably refund the money that I spend on drinks.'

The investigator subsequently checked with the Arizona Unemployment Security Commission whose records revealed that petitioner was actually paid $1403.00 between March, 1956, and February, 1959, by the owners of 'Bruno's' bar. Further, investigation revealed payments to petitioner of $10.00 a night for the Saturday nights of March and April, 1960. Petitioner testified he did not play every number, that he got off the bandstand 'for maybe a half hour' and 'then I probably go back again, play a few numbers and rest a few numbers.' The investigator testified that petitioner played as steadily and regularly as the other musicians and that he observed no rest periods at all other than possibly two or three minutes out of every hour.

On October 26, 1960, the Commission entered its decision, findings and an award for unscheduled permanent partial disability. It found that petitioner sustained personal injury by accident arising out of and in the course of his employment as a miner at which occupation he earned $413.35 a month, that he suffered a fifteen per cent physical functional disability as the result of his injury, that he claimed more disability than he actually possessed, that he was physically able and mentally competent to perform the regular duties of a change-room attendant and earn $378.56 a month, that such employment was available, that petitioner's earning capacity had been reduced by 8.42% for which he was entitled to compensation in the sum of $19.13 monthly; that petitioner willfully failed to report earnings in the amount of $1859.66 (as a musician) and that consequently he had been overpaid the sum of $72.95 which sum was to be deducted from future payments.

On petitioner's protest, a rehearing was held on October 16, 1961, and on July 6, 1962, the Commission affirmed its previous decision, findings and award. From the July 6, 1962, award this appeal by certiorari has been taken.

As a preliminary, petitioner argues that he did not willfully fail to report earnings in the amount of $1859.66. But we think the bare recitation of the foregoing facts refutes petitioner's argument and fully justifies the finding--in fact, brings into question the credibility of much of petitioner's unsupported testimony.

Petitioner urges that if the Commission may take into consideration petitioner's earnings as a part time musician to determine petitioner's monthly earning capacity after his injury it should have taken into consideration earnings as a musician prior to his injury and for that reason the award of the Commission pertaining to the overpayment of the sum of $72.95 was unwarranted. We are in agreement with petitioner's position. This State is committed to the principle that the wage basis of an employee injured in one of two unrelated employments in which he was concurrently employed will not be combined where the concurrent employer was not subject to the compensation act. Faulkner v. Industrial Commission, 71 Ariz. 76, 223 P.2d 905. In Faulkner, the claimant was injured while serving as a flagman at an automobile race in which occupation he...