Ujevich v. Inspiration Consolidated Copper Company

• Decision Date: 02 October 1933
• Docket Number: Civil 3313
• Citation: 42 Ariz. 276,25 P.2d 273
• Parties: ANTONIO UJEVICH, Petitioner, v. INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Defendant-Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant-Insurance Carrier, Respondents
• Court: Arizona Supreme Court

25 P.2d 273

42 Ariz. 276

ANTONIO UJEVICH, Petitioner, v. INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Defendant-Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant-Insurance Carrier, Respondents

Civil No. 3313

Supreme Court of Arizona

October 2, 1933

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award set aside and vacated and cause remanded, with directions.

Mr Austin O'Brien and Mr. V. L. Hash, for Petitioner.

Mr. Don C. Babbitt and Mr. Emil Wachtel, for Respondents.

OPINION

ROSS, C. J.

The petitioner, Antonio Ujevich, on November 16, 1928, while working for the Inspiration Consolidated Copper Company as a miner, was accidentally run into by the motor of an ore train and sustained a fracture of his right leg, between the knee and ankle, of the left leg in the upper part of the femur and also of his left hip-bone.

On August 24, 1929, the Industrial Commission awarded him compensation for temporary total disability in the sum of $881.28, and for permanent partial disability the sum of $74.75 per month for five months. This was 50 per cent. of this average monthly wage. On September 16, 1929, upon the application of petitioner, the award of August 24th was amended to allow compensation for ten months at $74.75 per month. Upon a rehearing the commission affirmed its findings and award of September 16th. The petitioner was paid the compensation for temporary total disability, as also the award for permanent partial disability, either by the employer or out of the state compensation fund in which the employer was insured.

On June 29, 1932, the Industrial Commission, on the application of petitioner, again amended its findings and award of September 16, 1929 by extending permanent partial disability compensation at the same rate for seven and one-half months making the allowance for such compensation seventeen and one-half months.

On July 16, 1932, petitioner moved for a rehearing on the last above-named award, which was granted, and on December 13, 1932, after an extensive hearing, the commission in its decision upon the rehearing affirmed the finding and award of June 29th.

Within the time allowed by law, petitioner applied to the Supreme Court for a writ of certiorari to the Industrial Commission. The return of the commission to said writ is now before us.

The only question raised is as to whether the award is the one that should have been made for the kind and character of injuries or losses proved by the evidence. The findings of the commission are general. They do not describe or classify the injury or injuries to petitioner, as we think they should, so that it could be determined therefrom the statutory provision under which the award was made.

The petitioner was 52 years of age. Both the tibia and fibula of the right leg were fractured, as also the upper third of the femur of the left leg, which extended to the left hip-bone. He was confined to the hospital for five months after which he was able to walk with a cane. The fractures healed with a firm bony union, in good position and alignment. A periosteal spur, during the process of healing, formed at the inner side of the shaft of the left femur. The petitioner says his left leg and hip hurt him when he stands or walks, so much so that he cannot work. He also says this leg swells and turns black when he uses it very much. There is some limitation of motion of the left thigh. In May, 1932, for the purpose of trying to remove the causes, or one of the causes, of petitioner's suffering and pain in his left leg and hip, the physicians of the employer undertook to remove the periosteal spur mentioned above, but had to abandon it on account of the patient's poor reaction to the anaesthetic. He refuses to again submit to an operation. The right leg apparently gave petitioner no trouble or pain after it healed. The left leg is about one and three-quarter inches shorter than normal. The percentage of general disability caused by the injuries was estimated by the experts at the December, 1932, hearing to be from 15 to 30 per cent.

The petitioner asserts that under section 1438 of the Revised Code of 1928 he should have been awarded compensation: (1) For temporary total disability; (2) for permanent partial disability, under class (u) of that section; and (3) for partial disability to work under class (w) of said section; whereas he was awarded compensation only under (1) and (2). We have not heretofore thought petitioner's claim correct, and after reading his analysis of the different parts of the statute, and giving his contention the serious consideration it deserves, he has not convinced us that he is right. He cites no authority.

In most, if not all, cases there is temporary disability. It may be total or partial. Its duration and compensation if total may extend for one hundred months, if partial, for sixty months. Actually it is generally very much less. The total temporary compensation is fixed at 65 per cent. of the average monthly wage of the injured workman; if partial temporary, 65 per cent. of the difference between wages earned before and those he is able to earn after injury. We assume that, since no question is made as to the correctness of the temporary compensation, that if conformed with the evidence and law. In addition to temporary disability there generally follows permanent total disability, which is defined in subdivision (B) of section 1438, or temporary or permanent partial disability, defined in subdivision (C) of the same section. It is the latter kind of...