Beasley v. Industrial Commission , 15 Ariz. App. 394 ( 1971 )

JACOBSON, Presiding Judge.

In this appeal by writ of certiorari, the Court is asked to determine at what point in time a minor claimant is entitled to the probable average monthly wage provided by A.R.S. § 23-1042 entitled “Basis for computing average monthly wage of minor permanently incapacitated.”

The facts are not in dispute. On July 1, 1963, the petitioner, Haskell Beasley, Jr., 17 years old at that time, was injured in an industrial accident when he was shot through the spine. This injury resulted in complete paralysis of both legs. The Commission awarded him temporary total disability benefits in the sum of $289.83 per month based upon his earning capacity at the age of 17. These temporary benefits continued until an award was entered on August 19, 1969. On that day the Commission determined that his condition was permanent and increased the award to $371.32 per month, retroactive to petitioner’s 21st birthday — February 5, 1967. The August 19, 1969 award was increased on April 24, 1970, to $477.17 per month, this amount being based upon the stipulated average monthly wage he would probably earn at the age of 21. The April 24, 1970 award was also made retroactive to February 5, 1967.

The petitioner contends he is entitled to be paid the amount set forth in the stipulated award of April 24, 1970, retroactive to the date of his injury — July 1, 1963. On the other hand, the Fund contends that this increased probable earning capacity can only be paid retroactively to his 21st birthday.

The statute which controls in this case is as follows:

A.R.S. § 23-1042

“If it is established by competent evidence that an injured employee is under twenty-one years of age and his incapacity is permanent, his average monthly earning capacity shall be deemed, within the limits fixed by §§ 23-1041 and 23-1046, to be the monthly amount which under ordinary circumstances he would probably be able to earn at the age of twenty-one years in the occupation in which he was employed at the time of injury, or in any occupation to which he. would reasonably have been promoted if he had not been injured. If the probable earnings at the age of twenty-one years cannot be reasonably determined, his average earnings shall be based upon, four dollars per day for a six-day week.”

In analyzing A.R.S. § 23-1042, it is apparent that it is in conflict with the general statutory procedure utilized in determining the average monthly wage of an injured adult workman. Under the general statute, A.R.S. § 23-1041, an injured adult workman is required to have his average monthly earning capacity determined “on the basis of such employee’s average monthly wage at the time of injury.” ¹

It is further apparent that A.R.S. § 23-1042 can only come into play and change this adult determination period on the happening of two conditions, that is, (1) the injured workman is under 21 years of age at the time his injury occurred, and (2) his disability is permanent.

Legislation such as A.R.S. § 23-1042 was obviously intended to remedy the unjust situation of requiring a minor whose permanent injuries are presumed to affect his earning capacity for the entire term of his wage earning career, to receive benefits based upon an earning capacity .at a time when his full productivity had not yet been realized. By enacting A.R.S. § 23-1042 the legislature has, to some extent, remedied this inequitable situation by establishing full productivity at 21 years of age. Thus, a permanently incapacitated workman who received his compensable injury .as a minor is entitled to receive for his -p'errfranent injuries compensation based upon “the monthly amount which under ordinary circumstances he- would probably be .able to earn at the age of twenty-one years •.iii the occupation in which he was employed at the time of injury. * * * ”

While the salutary effect of this type of legislation is clear, in the opinion of a majority of this Court, the statute is ambiguous as to what point in time this salutary effect is to take place. In other words, when is a permanently incapacitated minor entitled to receive benefits based upon the increased probable earning capacity ?

Again, in analyzing this statute we have no hesitancy in holding that a minor is not entitled to receive increased benefits for injuries which are only temporary in nature, even though total, and that the earliest date that these benefits can be received under the statute is when a determination is made that his incapacity is permanent in nature. This is in accord with the interpretation placed upon a similar New York statute. See, Hilbert v. Preferred Plating Co., 36 A.D.2d 77, 318 N.Y. S.2d 626 (1971).

Thus, we reject petitioner’s contention that in all cases the date of injury is the arbitrary date from which the increased compensation is to be paid, for the simple reason that an injury received on that date may or may- not result in permanent incapacity as required by the statute. However, a determination that an injury is permanent in nature can occur, for the purposes of giving effect to .this statute, at two different times, either prior to the injured minor attaining the age of 21 years or, as in this case, after his 21st birthday.

As to the former situation, we believe the statute is capable of being interpreted to mean that upon a determination-that the minor’s incapacity is permanent, even though he has not yet attained his 21st birthday, he is entitled to receive'compensation based upon an average monthly wage equal to his probable earning capacity at age 21. This is for the reason that the statute provides that once evidence establishes minority at the time of injury and permanent incapacity “his average monthly earning capacity shall he deemed” to be the increased amount.

However, to apply this date of determination of permanency test to an injured' workman who at the time of the determination had already reached his 21st birth-' day is to deprive him of the statutory presumption that his full earning capacity came into effect at age 21. Such a result also is contrary to the purpose of A.R.S. § 23-1042, that is, compensating such a workman who is permanently incapacitated based upon his earning capacity at age 21.

On the other hand, a majority of this Court is of the opinion that the legislature did not intend to hand a permanently incapacitated minor a windfall by compensating him from the date of his injuries based upon a 21-year-old earning capacity when in fact he was not earning such a wage. In making this observation, the majority is not unaware that under our holding in this case a windfall, so to speak, does occur when the minor’s incapacity becomes permanent prior to his 21st birthday. However, this particular windfall is required by the statute, while placing compensation at the increased earning capacity to date of injury is not.

We therefore hold that a workman who is injured as a minor but whose injuries are not determined to be permanent until after he has reached his 21st birthday is entitled to have his probable monthly earning capacity determined as of his 21st birthday and to be paid compensation based upon that determination retroactively to this 21st birthday date. This is, of course, what the Industrial Commission did in this case, and we could end this opinion at this point, except that the question still remains as to how this determination of permanency is to be made.

As indicated in the recitation of facts, petitioner was shot in 1963 through the spine which resulted in a complete paralysis of both legs. However, there was not an administrative determination that he was permanetly disabled until six years later in 1969. The Court is aware that the Industrial Commission in its normal operating procedure enters an initial award for temporary disability regardless of the extent of the injuries to enable a complete medical examination to be made to determine both the extent and permanency of a claimant’s disability. We are also aware that normally an administrative determination of permanency is not made until such time as the medical evidence discloses that the claimant’s condition is stationary, that is, further medical treatment is incapable of improving his overall condition so as to increase his capacity to earn wages. Minton v. Industrial Commission, 90 Ariz. 254, 367 P.2d 274 (1961); Aluminum Co. of America, etc. v. Industrial Commission, 61 Ariz. 520, 152 P.2d 297 (1944). Normally, this procedure, where the claimant is an adult, does not operate to the workman’s disadvantage.²

In the case of a minor claimant, however, unless a permanent disability determination is made at the earliest possible date, prejudice does occur because of our holding that such a minor is not entitled to compensation based on probable 21-year-old earnings during the temporary disability period.

In this case, the medical evidence clearly established that petitioner’s injuries to his spine resulted in the complete loss of use of both legs. The evidence is further clear that this diagnosis was apparent within a relatively short time following his injury. In view of the statutory presumption of total and permanent disability when an injury to the spine results in complete paralysis of both legs (A.R.S. § 23-1045, subsec. C, par. 4) and the medical evidence in this case, we are of the opinion that the passage of six years before an administrative determination was made that petitioner’s injuries were permanent is unreasonable.

For this reason, in the opinion of a majority of this Court, the award of the. Commission must be set aside for the purpose of allowing the Commission to determine when petitioner’s condition could' reasonably be classified as permanent under the medical evidence and start petitioner’s probable 21-year-old earning capacity compensation on that determination in accordance with the views expressed in this opinion.

1 . In our opinion the reference in Sec. 23-1042 to limits imposed by A.K.S. §§ 23-1041 and 23-1046 refer to exclusions of amounts in excess of 51,000.00 under A.R.S. § 23-1041 and the limitations on death benefits under A.R.S. § 23-1046.

2 . During the temporary partial disability period a claimant is paid at 65% of his earning capacity as compared to only 55% of earning capacity during the permanent partial disability period. (A.R.S. § 23-1044). If the disability is total, 65% of average monthly wage is paid for both temporary and permanent. A.R.S. § 23— 1045.