Wollum v. Industrial Commission

• Decision Date: 12 May 1966
• Docket Number: No. 8733--PR,8733--PR
• Citation: 100 Ariz. 317,414 P.2d 137
• Parties: James A. WOLLUM, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Merritt-Chapman & Scott Corporation, Respondents.
• Court: Arizona Supreme Court

Page 137

414 P.2d 137

100 Ariz. 317

James A. WOLLUM, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Merritt-Chapman & Scott Corporation, Respondents.

No. 8733--PR.

Supreme Court of Arizona, In Banc.

May 12, 1966.

Rehearing Denied June 7, 1966.

James D. Lester, Charles M. Brewer, Phoenix, for petitioner.

Robert K. Park, Chief Counsel, The Industrial Commission of Arizona, Dee-Dee Samet, Phoenix, for respondents.

McFARLAND, Justice.

Pursuant to Rule 47(b), Rules of the Supreme Court, 17 A.R.S., and A.R.S. § 12--120.24, we granted a petition to review the decision of the Court of Appeals reported in 2 Ariz.App. 392, 409 P.2d 312, which on writ of certiorari affirmed an award of The Industrial Commission of Arizona, hereinafter designated the Commission, to the petitioner in the Court of Appeals, James A. Wollum, hereinafter designated the claimant.

Claimant, an ironworker, was injured within the course of his employment August 1, 1963, while in the employ of respondent Merritt-Chapman & Scott at Page, Arizona. The claimant suffered a compensable injury when a deposit of oil on his shoe caused his right foot to slip inward and under his body, pulling and twisting his right knee. The Commission, in 'Findings and Award for Scheduled Permanent Disability,' dated September 23, 1964, determined that the claimant had sustained a permanent partial disability of fifteen (15) per cent functional loss of the right leg, and awarded claimant compensation based thereon, to-wit: compensation in the amount of $7,948.34 for total temporary disability, and compensation in the amount of $484.80 monthly for a period of seven and one-half months for permanent partial disability.

Claimant applied for a rehearing, alleging that '(c)ontrary to said findings and award the applicant has sustained an 'unscheduled' permanent partial disability, rather than a 'scheduled' disability,' for the reason that:

'1. As a result of a previous accident the applicant lost the distal phalanx of his left index finger. This constitutes a pre-existing disability and has always affected and impaired the applicant's dexterity, the general use of his left hand in the performance of his duties as an ironworker and his earning capacity as such.

'2. As a result of his disability to the right leg, the applicant is now severely handicapped and completely unable to perform many duties in connection with ironwork.

'3. As a result of the complete effect of both disabilities, the applicant has suffered a total loss of earning capacity as an ironworker and has otherwise suffered a substantial loss of earning capacity on the competitive labor market.'

The Commission, in its findings and award, dated September 23, 1964, had not mentioned the previous loss of the claimant's distal phalanx of the left index finger.

A rehearing was granted claimant. The 'case summary,' submitted to the Commission by the referee who conducted the rehearing, stated the following as the basis for his recommendation that the award be affirmed:

'In order for a second scheduled injury to entitle a claimant to an award for loss of earning capacity, the pre-existing scheduled injury must have been affecting his earning capacity at the time of the second injury. The evidence in this case is all to the contrary.'

The Commission, by order of March 5, 1965, accordingly made a finding that the previous award of scheduled permanent disability be affirmed.

The issue presented upon this appealing whether the 'previous loss of the distal phalanx of the left index finger, coupled with a fifteen per cent loss of function of the right leg, constitutes an 'unscheduled' disability under A.R.S. § 23--1044, subsecs. C. D. & E.'

' § 23--1044. Compensation for partial disability; computation

'B. Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule:

'21. For the partial loss of use of a * * * leg, * * * fifty per cent of the average monthly wage during that proportion of the number of months in the foregoing schedule provided for the complete loss of use of such member, * * * which the partial loss of use thereof bears to the total loss of use of such member * * *

'C. In cases not enumerated in subsection B of this section, where the injury causes permanent partial disability for work, the employee shall receive during such disability compensation equal to fifty-five per cent of the difference between his average monthly wages before the accident and the amount which represents his reduced monthly earning capacity resulting from the disability, but the payment shall not continue after the disability ends, or the death of the injured person, and in case the partial disability begins after a period of total disability, the period of total disability shall be deducted from the total period of compensation.

'D. In determining the amount which represents the reduced monthly earning capacity for the purposes of subsection C of this section, consideration shall be given, among other things, to any previous disability, the occupational history of the injured employee, the nature and extent of the physical disability, the type of work the injured employee is able to perform subsequent to the injury, any wages received for work performed subsequent to the injury and the age of the employee at the time of injury.

'E. In case there is a previous disability, as the loss of one eye, one hand, one foot or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.'

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 carning 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 required 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 accident the presumption of continuing disability would not exist, and the prior disability must be shown to have affected earning capacity of the claimant at the time of the subsequent injury. Goodyear Aircraft Corporation v. Industrial Commission, 89 Ariz. 114, 358 P.2d 715.

Therefore, the determination to be made by this court is whether there was sufficient evidence to reasonably support a finding by the Commission that the loss of the distal phalanx of his left index finger had not resulted in a loss of earning capacity disability existing at the time of injury.

We have held many times that the Commission will be upheld if its findings are reasonably supported by the evidence. Shroyer v. Industrial Commission, 98 Ariz. 388, 405 P.2d 875, rehearing denied 99 Ariz. 266, 408 P.2d 406; Russell v. Industrial Commission, 98 Ariz. 138, 402 P.2d 561.

The claimant testified on direct examination at the rehearing that he lost the portion of his left index finger while a child. He testified that even a right-handed ironworker needed his left hand in 'bolting up' and 'welding,' and that the loss had slowed him down. He stated that he was unable to use the remaining portion of the finger; that the weather bothered it; that the finger got in the way and was tender, and couldn't be used to grip, but just hung loose. But, on cross-examination, he stated:

'Q At any time has your earning capacity been impaired by your hand prior to the time that you hurt your leg in the accident?

'A Yes.

'Q You have earned less because of your hand?

'A A lot of places I would.

'Q What is the average wage for an iron worker?

'A 4.80 an hour.

'Q How much were you earning, say, in the year or two prior to the accident?

'A Working in iron?

'Q Yes.

'A When I was working up there, got hurt, I was making Five something an hour.

'Q So your hand was not affecting your earning capacity then?

'A Yes, it would affect me on some things, but with my leg it slowed me down so I couldn't do it at all.

'Q But you didn't earn anything less because of your hand, you were making 5.40 an hour, and the average wage is 4.80 an hour?

'A No, they didn't cut my wages on account of it.

'Q Before the accident when you would go down to the union hall were you refused jobs because of your hand?

'A I've always had a steady job with them before I went down to the union hall.'

Neal Rouhier testified, on direct examination for the claimant, that he and claimant had worked together as a team. He testified that he had observed claimant prior to injury to claimant's leg, performing various types of iron work and that claimant was a 'good hand,' diligent, able physically and mentally, strong, and one who never shirked his duties. He testified further that the claimant was a reliable teammate. In...