Whyte v. Industrial Commission

• Decision Date: 29 January 1951
• Docket Number: No. 5384,5384
• Parties: WHYTE v. INDUSTRIAL COMMISSION et al.
• Court: Arizona Supreme Court

Page 230

227 P.2d 230

71 Ariz. 338

WHYTE v. INDUSTRIAL COMMISSION et al.

No. 5384.

Supreme Court of Arizona.

Jan. 29, 1951.

Minne & Sorenson, Roger J. Blake, Jennings, Strouss, Salmon & Trask, and J. A. Riggins, Jr., all of Phoenix, for petitioner.

H. S. McCluskey, Phoenix, for respondent Industrial Commission of Arizona. Robert E. Yount and Donald J. Morgan, Phoenix, of counsel.

PHELPS, Justice.

On March 10, 1942, Bill Whyte, Jr., petitioner herein, was seriously injured by accident while in the employ of Twaits-Morrison-Knudsen & Webb who were then engaged in the construction business in Arizona. The injuries sustained were multiple and among other things resulted in the amputation of his left leg and a substantial loss in the use of his right leg. At the time of the injury petitioner was employed as an iron or steel worker earning an average wage of $241.20 per month.

Reports of the injury were filed with the commission by two physicians on March 16, 1942. A report by the employer was promptly made and claim for compensation was filed with the commission by the petitioner on March 25, 1942. Petitioner was hospitalized and furnished adequate medical and surgical attention. This service included the furnishing of a prosthesis for the left leg.

On March 28, 1947, the commission made its findings and award which found that petitioner was 'entitled to compensation for temporary disability from March 11, 1942 through March 14, 1947, in the sum of $10,180.90' (the finding does not say whether the disability is total or partial). It further found 'that said injury also caused a permanent partial disability equal to 100% of a total disability' and entitled him 'to compensation therefor in the sum of $156.78 monthly until further order of the commission.' Then the commission proceeded to award petitioner accident benefits, compensation in the sum of $10,180.90, all of which had then been paid except the sum of $5.56 and 'the additional sum of $156.78 monthly until further order of the commission, the first payments to be made on April 14, 1947.'

The Allison Steel Company had employed petitioner for several years prior to his injury and due to labor shortages during the war emergency had temporarily loaned him together with other employees to Twaits-Morrison-Knudsen & Webb only a short time before the accident occurred.

In April, 1947, the Allison Steel Company emplyed petitioner as a timekeeper because he had worked for them for several years prior to his injury and because of the fact that his father had been employed by them for many years. But the evidence is clear regardless of the considerations prompting the employment orignally that petitioner has fully performed the duties. required of a timekeeper for the company. From the date of his employment up to and through September, 1949, petitioner's average wage was the sum of $223.50.

During October, 1949, petitioner was having some difficulty with the prosthesis he was wearing due to a shrinkage in the stump of his leg and on October 17th, 1949, he filed a motion with the commission to reopen his award for the purpose of petitioning that he be furnished a new prosthesis. Upon investigation the commission, for the first time, discovered petitioner was employed and issued its order directing him to show cause why his case should not be reopened for the purpose of determining if further surgery or a new prosthesis were necessary and why the award of March 28, 1947, should not be amended and supplemented to determine future loss of earning capacity based upon new developments.

The commission conducted its hearing thereon on the date fixed in the order and later upon application of petitioner heard further evidence on the matters under consideration and on May 16, 1950, rendered its decision upon rehearing and order to show cause affirming its finding of fact 1, 2, 3, 4, 5 and 6 of March 28, 1947. It then proceeded to recite its No. 7 findings of fact of said date, and undertook to explain why it made such a finding. A number of other findings of fact were made but we believe the only other findings material to the determination of the issues here are that, at the time of petitioner's injury, his average monthly wage, as an iron or steelworker, was $241.20 while at that time the average monthly wage of a timekeeper was $165; and that the average monthly wage of petitioner as a timekeeper from April 1947 through September 1949 was $223.50.

Based upon its findings the commission made its award for temporary total disability from March 28, 1947, through November 29, 1949 of $156.78 per month and compensation for a permanent partial disability at the rate of $9.74 from November 30, 1949 until further order. Petitioner brings this case here on certiorari and presents 9 separate assignments of error, all of which can be boiled down into two primary propositions of law:

1. Is the finding of fact of March 28, 1942 'that said injury caused also a permanent partial disability equal to 100% of a total disability and entitles said applicant to compensation therefor in the sum of $156.78 monthly until further order of the commission,' a finding of permanent total disability and if so, is it res judicata?

2. If it is not, did the commission use the proper basis of earnings for computation of compensation to which petitioner is entitled?

In spite of the fact that this court since the case of Zager v. Industrial Commission, 40 Ariz. 479, 14 P.2d 472 has repeatedly called the attention of the commission to the fact that a finding of disability is invalid unless it desigates whether it is total or partial, temporary or permanent, its findings of March 28, 1947, in this case not only fail to comply with decisions of the court in that respect but employed language so ambiguous that we are burdened with the task of endeavoring to discern its meaning which adds materially to the labors of the court in industrial cases, which under the most favorable circumstances are not easy of solution.

The finding 'that said injury caused a permanent partial disability equal to 100% of a total disability' is incongruous and unintelligible. If it is equal to 100% of total disability it is a total disability, not a partial disability. And if we were to consider this portion of the finding alone we would be compelled to hold that the commission intended to find 'a total disability.' But in the absence of a finding to that effect we could not say whether it was 'a temporary total disability' or 'a permanent total disability' and under the previous rulings of the court first laid down in the Zagar case, supra, in the absence of other indicia of intention we would be constrained to declare the finding invalid. The portion of the finding 'that said injury caused a permanent partial disability' constitutes a part of a printed form and the words 'equal to 100% of a total disability' are typewritten. Standing alone the latter would control in the case of a conflict in the printed and typewritten portions. But when we consider the portion of that finding (all of which is typewritten except the figures $156.78) which reads, 'and entitles said applicant to compensation therefor in the sum of $156.78 monthly' and then followed in typewriting by the words 'until further order of the commission' we are convinced that the commission by said finding did not intend that such 'total disability' was considered by it to be 'permanent.' The limitation 'until further order of the commission' unequivocally refutes its permanency. If the court intended to find a total permanent disability' the law made it mandatory upon it to make its award for life. Therefore, construed as a whole, we believe it inescapable that the finding of the commission above is that the petitioner had suffered a 'temporary total disability.'

The award of March 28, 1947 is therefore not res judicata. Having reached the conclusion that petitioner was found by the commission on March 28, 1947, to have suffered a 'temporary total disability' and it appearing from the record that up until that time petitioner had not performed any work whatever, under the rule laid down in the case of Kennecott Copper Corp. v. Industrial Commission, 62 Ariz. 516, 158 P.2d 887, 892, the commission had the authority to continue petitioner in the 'temporary total disability' classification until some definite evidence was procured to determine what his earning capacity would be. This it apparently did.

The next question is: Did the commission use a proper basis in computing the compensation due petitioner in a permanent partial disability classification? In arriving at its compensation the commission simply allowed petitioner 55% of the difference between his average monthly wages of $223.50 received from April 1947 through September 1949 and his average monthly wage of $241.20 received by him at the time of his injury. We do not believe this to be the correct basis upon which to predicate such compensation.

The question of whether the formula used by the commission is correct must of course be determined by an ascertainment of the legislative intent as gathered from section 56-957(c), A.C.A. 1939 here under consideration which provides in so far as we are concerned that: '* * * where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, * * *'

In arriving at such intent we will endeavor to apply the ordinary rules of statutory construction which we find unnecessary to repeat here. By clear and unmistakable language the legislature has fixed the average wage of an injured employee as of the date of his injury as the measure of his earning capacity prior to his injury. It then provides for compensation of 55% of the difference between...