Yanez v. Industrial Commission

• Decision Date: 26 February 1974
• Docket Number: CA-IC,No. 1,1
• Citation: 21 Ariz.App. 367,519 P.2d 220
• Parties: Valdemar A. YANEZ, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Town of South Tucson, Respondent Employer, State Compensation Fund, Respondent Carrier. 917.
• Court: Arizona Court of Appeals

Page 220

519 P.2d 220

21 Ariz.App. 367

Valdemar A. YANEZ, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Town of South Tucson, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 917.

Court of Appeals of Arizona, Division 1, Department A.

Feb. 26, 1974.

Rehearing Denied April 5, 1974.

Review Denied April 30, 1974.

Bernard I. Rabinovitz, James S. Dix, Tucson, for petitioner.

William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Ariz., Phoenix, for respondent.

Robert K. Park, Chief Counsel, State Compensation Fund, by Dee-Dee Samet, Phoenix, for respondent employer and respondent carrier.

OPINION

STEVENS, Judge.

Two questions are raised in this writ of certiorari. The first is whether the facts presented by the petitioner are sufficient to raise a presumption of an impaired earning capacity at the time of incurring a scheduled injury, so that the petitioner may receive an unscheduled award under A.R.S. § 23--1044(E). The second question is whether, absent such a presumption, there is sufficient evidence in the record to support the hearing officer's finding that no previous disability existed.

On 3 October 1969 the petitioner was standing on top of a garbage truck in the course of his employment for the City of South Tucson. While performing his assigned tasks he fell from the truck and injured his left knee. After preliminary treatment, on 2 July 1970 the left knee was fused, leaving the petitioner with a 75% Loss of junction in his left knee. On 29 June 1971, when it appeared that the petitioner's condition had stabilized, he was awarded 50% Of his average monthly wage for 37 1/2 months, pursuant to A.R.S. § 23--1044(B) (21). On 20 August 1971 the petitioner filed an objection to the award, stating that he was entitled to an unscheduled award pursuant to A.R.S. § 23.1044(E).

On 13 December 1971 a hearing was held. The petitioner testified that he had suffered an abdominal would while in the armed forces in World War II, and that he was discharged with a 30% Disability. He also stated that his abdominal wound caused him pain after heavy work, requiring him to rest, and that this caused him to be released from one construction job. On cross-examination the petitioner testified that since his discharge he had earned his livelihood at manual labor, doing heavy construction work, often more than eight hours per day. His job with the City of South Tucson required him to lift garbage cans of 30 lbs. or more which he performed satisfactorily. In giving his history to his physician on the day of the accident, the petitioner told the doctor that he had no subsequent problems from his abdominal surgery in World War II. He was hospitalized in 1953 for gastroenteritis, but the etiology of that disease was not established.

The petitioner first argues that his rated disability from the armed forces should have the same affect as a scheduled award under A.R.S. § 23--1044(B), and that the succession of scheduled awards should yield an unscheduled award under Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971). We do not agree.

The principle which requires that maltiple scheduled injuries be regarded with respect to their 'complete affect' on the workman is well established in Arizona. For a description of the rationale behind the principle, see Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396 (1935).

Under the rationale of Ossic v. Verde Central Mines, and by the express terms of A.R.S. § 23--1044(E), a workman suffering from a previous impairment to his earning capacity who suffers in injury described in A.R.S. § 23--1044(B) may prove the extent of his overall disability, and receive compensation for the incremental disability resulting from the injury, rather than the compensation described in the schedule. The general rule regarding cases brought under A.R.S. § 23--1044(E) is that the claimant bears the burden of proving his impaired earning capacity at the time of the injury. Tropp v. Industrial Commission, 11 Ariz.App. 381, 464 P.2d 827 (1970). Two notable exceptions to this rule exist, in which the claimant receives the benefit of a presumption of an impaired earning capacity. They are clearly described in Ronquillo v. Industrial Commission, supra...