Ujevich v. Inspiration Consolidated Copper Co.

• Decision Date: 13 June 1934
• Docket Number: Civil 3488
• Citation: 33 P.2d 599,44 Ariz. 16
• 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

33 P.2d 599

44 Ariz. 16

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

Civil No. 3488

Supreme Court of Arizona

June 13, 1934

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

Mr Austin O'Brien, for Petitioner.

Mr. Don C. Babbitt (Mr. Emil Wachtel, on the Brief), for Respondents.

OPINION

ROSS C.J.

This is an industrial accident case. In a former opinion we stated the facts. 42 Ariz. 276, 25 P.2d 273. The injuries sustained by Ujevich were fractures of the tibia and fibula of the right leg and a fracture of the upper third of the femur of the left leg. Our holding was that for such injuries he should receive compensation as for temporary total disability, and for permanent partial disability under (u) of subdivision (C), of section 1438, Revised Code of 1928. The injuries to the right leg were temporary only and caused no permanent disability. They had been fully compensated. The injury to the femur of the left leg was permanent partial, causing a partial loss of use of the leg. Because the commission had not computed or ascertained the percentage of the loss of the use of the left leg as compared with the total loss by separation, the award was vacated. In our opinion we also said:

"The petitioner, it appears, in addition to the injury to both of his legs, suffered an injury or fracture of the left hip bone at its juncture with the shaft of the femur. An injury to the hip is not classified and specifically compensated under subdivision (C) of section 1438. If, as a matter of fact such injury contributed in any way to the disablement of the petitioner to work, he should be compensated therefor under (w) of said subdivision (C); such compensation to be calculated according to the formula in (w)."

On December 2, 1933, and subsequent to the decision of this court, the commission, after receiving additional evidence, found that Ujevich had been disabled in his left leg 30 per cent., and amended the award to compensate him for fifteen months at $74.75 monthly. The motion for rehearing was based upon the contention that the percentage of the disability found was incorrect and that the injury was classified as one of the leg, whereas it should have been, under the evidence, classified as an injury to his hip.

Petitioner complains because the commission failed to have a formal hearing of the case at which he might cross-examine adversary witnesses and submit the oral testimony of himself. In his motion for rehearing he made no such complaint. In fact the record shows he seemed to acquiesce in the method pursued. This point not having been urged before the commission comes too late.

On the merits the petitioner now contends that the injury to the left femur is not an injury to his leg for which specific compensation is granted, but falls within (w) of subdivision (C), of section 1438. He cites many medical and dictionary definitions of the word "leg," which state it to be that portion of the limb consisting of the patella, tibia and fibula, or from the ankle to the knee. We have no quarrel with these anatomical definitions, but the question is, What does the word mean as used in our Compensation Law? We think it is used in the sense of its common and accepted meaning, which is, according to Webster's New International Dictionary:

"A limb or member of an animal used for supporting the body, and in running, climbing, or swimming; sometimes, specify that part of the limb between the knee and the foot." Reno v. Holmes, 238 Mich. 572, 214 N.W. 174.

The human body has two arms and two legs, or four limbs. A complete arm, in common parlance, extends from where it connects with the shoulder blade to the hand; and a complete leg extends from where the ball of the femur fits into the socket of the hip to the ankle or foot. Section 1438 subdivision (C), divides these limbs of the human body, for the purpose of fixing specific compensation, into parts. For instance, from (a) to (k), inclusive, the compensation for the digits of the four limbs is fixed at so much for the whole of each one of them and also for parts thereof. For such purpose the hand is likewise divided into a major and a minor hand (l); the arm into a major and a minor arm (m); the leg into a foot (n) and into a leg (o); and it is provided in (t) that "the permanent and complete loss of...