Pena v. Industrial Commission ( 1969 )

DONOFRIO, Presiding Judge.

This is a writ of certiorari to review the lawfulness of an award and findings of The Industrial Commission of Arizona.

Petitioner, Mario Pena, thirty-one years of age, suffered an injury on August 1, 1966 while working for the City of Glendale. His left arm and shoulder slipped into and in front of a trash-packing-unit gear of the truck on which he was working. The Commission found that petitioner sustained a fifteen percent functional impairment of the left (minor) arm as a result of the industrial accident, and issued an award and findings for permanent scheduled disability. Petitioner filed a petition for hearing, claiming the injury to be an unscheduled disability. After hearing, the Commission reaffirmed its findings and award for permanent scheduled disability. Certiorari was taken from this award.

The crucial question is whether the injury sustained by petitioner should be classified as a scheduled injury under A.R.S. § 23-1044, subsec. B or, as contended by petitioner, an unscheduled injury under A.R.S. § 23-1044, subsec. C.

The facts are not in serious dispute. Petitioner’s condition is medically stationary and he suffers from certain anatomical changes in his shoulder. All of his physical functional impairment is to the minor arm. Loss to minor arm is scheduled. A.R.S. § 23-1044, subsec. B. It is uncontroverted that petitioner suffered considerable injury to his shoulder as well as to his arm when he slipped into the packing gear. However, the medical evidence now shows that the only residual disability is to the use of his arm. Petitioner contends that since the shoulder is significantly involved the award should not be scheduled under A.R.S. § 23-1044, subsec. B, but comes under A.R.S. § 23-1044, subsec. C.

This is the same question which was involved in the recent opinion of this Court in Heredia v. Industrial Commission, 10 Ariz.App. 507, 460 P.2d 43 (decided October 27, 1969). The facts of the Instant case are quite similar to Heredia and we believe the same holding and reasoning should apply. Under the existing case law the situs of the residual disability is controlling. Arnott v. Industrial Commission, 103 Ariz. 182, 439 P.2d 419 (1968). It is not the place or the position of the involvement of the injury, but rather the residual impairment resulting from the industrial injury which is controlling. In this case the functional impairment is of the minor arm. The award is reasonably supported by the ■evidence.

Affirmed.

CAMERON, J., concurs.