Zapien v. Industrial Commission

• Court: Arizona Court of Appeals
• Writing for the Court: DONOFRIO
• Citation: Zapien v. Industrial Commission, 470 P.2d 482, 12 Ariz.App. 334 (Ariz. App. 1970)
• Decision Date: 11 June 1970
• Docket Number: CA-IC,No. 1,1
• Parties: Guadalupe ZAPIEN, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Peter Kiewit Sons & Company, Respondent Employer, Aetna Casualty and Surety Company, Respondent Carrier. 268.

Page 482

470 P.2d 482

12 Ariz.App. 334

Guadalupe ZAPIEN, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent Peter Kiewit Sons & Company, Respondent Employer Aetna Casualty and Surety Company, Respondent Carrier.

No. 1 CA-IC 268.

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

June 11, 1970.

Gorey & Ely, by Stephen S. Gorey, Phoenix, for petitioner. Donald L. Cross, Chief Counsel, Phoenix, for respondent Industrial Commission of Arizona.

Morgan & Jerome, by Donald J. Morgan, Phoenix, for respondent carrier.

DONOFRIO, Presiding Judge.

This is a writ of certiorari to review the lawfulness of an award and findings of the Industrial Commission of Arizona dated February 11, 1969, which affirmed a previous hearing and award entered on November 20, 1967.

Petitioner suffered an industrial accident on March 14, 1966 while moving some timbers on road work near Wikieup, Arizona. He contends that the award is incorrect in three respects.

First, petitioner urges the award incorrect in that he was entitled to six additional days of partial disability, contending that he had missed six days of work between the date of his injury and March 30, 1966. The Commission made March 30th the commencement date for its award of compensation. On this point petitioner's position is based upon the fact that his disability kept him from work more than fourteen days and therefore his compensation should begin as of the date of injury, March 14, 1966, rather than the selected date of March 30, 1966. He cites A.R.S. § 23--1062, subsec. B and Roberson v. Industrial Commission, 98 Ariz. 336, 404 P.2d 419 (1965). Although we agree with the law set forth in those authorities, we are unable to find any evidence to support the position urged by counsel that petitioner missed the six days of work.

At the hearing the employer's supervisor testified that petitioner commenced work as a traffic flagman on the day immediately following his accident, remaining on that job three days; that thereafter he worked at some light jobs around the employer's district office until he was transferred back to the job on the road, the one to which he objected. All of the reports and memoranda in the file indicate that petitioner worked and remained on the payroll, receiving his full rate of pay for the entire period through March 29, 1966. Although petitioner would be entitled to compensation from the date of injury until such time as he was able to return to work, less the amount received as wages, we are unable to find that he was prejudiced by the manner in which this award was made since he suffered no loss.

Next, petitioner urges that the award is unlawful in that his average monthly wage was incorrectly determined. He contends the Commission failed to take into consideration in the year used five weeks of work he missed as a result of a strike over which his particular union had no control.

Again we agree with the announced law that where, during a given year, an injured employee loses time due to events over which he has no control, and where the loss of time is not a common and ordinary incident to the particular employment, such time should be omitted in computing his average monthly wage. Pettis v. Industrial Commission, 91 Ariz. 298, 372 P.2d 72 (1962). However, we cannot agree that the Commission acted unlawfully in this matter.

Petitioner relies upon the evidence...