Summary
interpreting "at the time of the subsequent injury" to mean "the time the subsequent injury was received"
Summary of this case from Crown Atl. Co. v. AP Wireless Invs. I, LLCOpinion
No. 1 CA-IC 655.
February 20, 1973. Rehearing Denied March 7, 1973. Review Denied April 17, 1973.
Writ of certiorari to review lawfulness of an award of the Industrial Commission (Claim No. AU 35). The Court of Appeals, Haire, J., held that claimant, who sustained an industrial injury to his arm which resulted in an award for scheduled permanent disability, who subsequently developed additional problems resulting from arm injury, and whose arm was amputated nine and three-fourths years after industrial injury, was not entitled to receive an award for unscheduled permanent partial disability, instead of scheduled award which was entered by the Industrial Commission, by reason of alleged fact that at time of amputation he was suffering from a completely unrelated disabling arthritic condition, where claimant did not claim that he was suffering from a disability due to arthritis prior to or at time of his industrial injury, and where claimant did not claim that his allegedly disabling arthritic condition was in any way causally related to his industrial injury.
Affirmed.
Gilbert Gonzalez, Tucson, for petitioner.
William C. Wahl, Jr., Chief Counsel, Phoenix, for respondent The Industrial Comm. of Ariz.
Robert K. Park, Chief Counsel, State Compensation Fund, by J. Victor Stoffa, Phoenix, for respondents employer and carrier.
On this review by certiorari of an award entered by the Industrial Commission, the petitioner contends that he should have received an award for unscheduled permanent partial disability instead of the scheduled award which was entered by the Commission.
As used in this opinion, the term "unscheduled" refers to an injury which is compensated pursuant to the provisions of A.R.S. § 23-1044, subsection C. The term "scheduled" refers to an injury for which compensation is provided pursuant to the schedule of benefits set forth in A.R.S. § 23-1044, subsection B.
On January 1, 1960, when petitioner was 50 years of age, he sustained an industrial injury to his left arm, which resulted in a findings and award for scheduled permanent disability issued February 11, 1964. This award found that the petitioner had sustained a permanent partial disability "equal to 17 1/2% loss of function of the left (minor) arm". This award of February 11, 1964 became final, and is not questioned on this review. Subsequent to February 11, 1964, the petitioner developed additional problems resulting from the 1960 injury to his left arm. He filed a petition to reopen with the Commission, and on October 16, 1968 the Commission issued an award reopening petitioner's claim as of August 29, 1968, for "new, additional or previously undiscovered disability". This reopening culminated in an award issued May 6, 1971 for scheduled permanent disability. It is unquestioned that the "new, additional or previously undiscovered disability" covered by the reopening award was causally related to the 1960 injury, and resulted in the amputation of petitioner's left forearm. On making the May 6, 1971 award, the Commission found "a permanent partial disability equal to 100% loss by amputation of the left (minor) arm" and entered the appropriate scheduled award.
On this review, petitioner contends that he should have received an unscheduled disability award for the sole reason that at the time of the amputation he was allegedly suffering from a completely unrelated disabling arthritic condition. Apart from the fact that there is evidence in the record which would support a finding that the petitioner was not suffering from any disabling arthritic condition at the time of the amputation, there are obvious legal impediments to petitioner's contention. Petitioner does not contend, nor would the evidence support a finding, that he was suffering from any disability due to arthritis prior to or at the time of his injury on January 1, 1960. Further, he does not contend, nor again would the evidence support a finding, that his alleged disabling arthritic condition was in any way causally related to his industrial injury. His sole contention is that the arthritic condition complained of was in existence on October 6, 1969 (some 9 3/4 years after he suffered his industrial injury), the date of the amputation of his left arm.
In Rodgers v. Industrial Commission, 15 Ariz. App. 329, 488 P.2d 685 (1971) we reviewed the Arizona decisions pertaining to "multiple" or "successive" scheduled injuries and the circumstances under which an injury which would normally be "scheduled" might be converted to "unscheduled". See also Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971). We can find no support in any of the Arizona decisions or statutes for petitioner's position. In considering A.R.S. § 23-1044, subsec. E, the language "at the time of the subsequent injury" refers to the time the subsequent injury was received, and not to the time the injury or disabling condition became stationary as contended by petitioner, so as to require compensation for completely unrelated disabilities which might develop after the injury was received.
A.R.S. § 23-1044, subsec. E reads as follows:
"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."
The award of the Commission is affirmed.
JACOBSON, C.J., Division 1, and EUBANK, P.J., concur.