Alsbrooks v. Industrial Commission , 118 Ariz. 480 ( 1978 )

CAMERON, Chief Justice.

We granted the petition for review in this case to settle an apparent conflict among the previous cases of Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971); Ross v. Industrial Commission, 112 Ariz. 253, 540 P.2d 1234 (1975); and Smith v. Industrial Commission, 113 Ariz. 304, 552 P.2d 1198 (1976), which concern the application of the Workmen’s Compensation Act to a second injury after a prior non-industrial injury.

The question before the court is as follows: In order for a prior non-industrial injury to have the effect of changing a subsequent industrial injury from “scheduled” to “unscheduled,” must the prior nonindustrial injury have resulted in a disability for work? Stated differently, is a disability alone, without a showing that it affects the ability of the claimant to work, sufficient to change the subsequent injury from scheduled to unscheduled?

The facts necessary for a determination of this matter are as follows. During World War II, the claimant, Alsbrooks, sustained two non-industrial injuries. One was a shrapnel wound to the right knee and the other was a low back injury. For these injuries the claimant received a 50% service-connected permanent disability later reduced to 40%.

On 25 May 1972, claimant sustained an industrial injury to his left knee. The hearing officer found that the injury occurred in the course and scope of his employment as an electrician and entered an award for a scheduled injury. The Court of Appeals set this award aside and we granted review.

A.R.S. § 23-1041 provides that every employee covered by the Act “shall receive the compensation fixed in this chapter on the basis of such employee’s average monthly wage at the time of injury.” And A.R.S. § 23-1044 provides the method of determining the amount of compensation for partial disability. Paragraph B of § 23-1044 reads in part as follows:

“B. Disability shall be deemed permanent partial disability if caused by any of the following specified injuries, and compensation of fifty-five per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the period given in the following schedule:

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“21. For the partial loss of use of a finger, toe, arm, hand, foot, leg, or partial loss of sight or hearing, fifty percent of the average monthly wage during that proportion of the number of months in the foregoing schedule provided for the complete loss of use of such member, or complete loss of sight or hearing, which the partial loss of use thereof bears to the total loss of use of such member or total loss of sight or hearing.”

Paragraph B provides that if a person receives an injury as enumerated, disability is presumed to result and compensation for the prescribed period of time at 55% of the average monthly wage must be paid. Thus, all the workman need show is that his injury is listed in Paragraph B and thereafter disability as well as loss of earning capacity is presumed. Because the injuries covered by Paragraph B are listed specifically, they are called “scheduled” injuries.

Paragraph C of A.R.S. § 23-1044 provides for “unscheduled” injuries, those not specifically included in Paragraph B:

“C. In cases not enumerated in subsection B of this section, where the injury causes permanent partial disability for work, the employee shall receive during such disability compensation equal to fifty-five per cent of the difference between his average monthly wages before the accident and the amount which represents his reduced monthly earning capacity resulting from the disability. * * " (emphasis added)

Under Paragraph C, if the injury is one not enumerated under Paragraph B, the injured workman has the burden of showing not only the fact that the injury arose out of and in the course and scope of his employment, but that it caused a disability for work with a resulting loss of or decrease in earning capacity. The difference between Paragraphs B and C is that loss of earning capacity for the industrial injury is presumed in Paragraph B, but must be shown under Paragraph C. As Paragraph C indicates, the injury must be an “earning capacity disability” and compensation will not be paid for disability or physical impairment without some loss of earning capacity.

Paragraph D of A.R.S. § 23-1044 requires us to take into consideration any previous disability when making an award, and we have stated in a case where the previous injury was the result of a non-industrial amputation of the distal phalanx of the left index finger:

“* * * if the prior disability arose through other than a prior industrial accident the presumption of continuing disability would not exist, and the prior disability must be shown to have affected earning capacity of the claimant at the time of the subsequent injury. Goodyear Aircraft Corporation v. Industrial Commission, 89 Ariz. 114, 358 P.2d 715.” Wollum v. Industrial Commission, 100 Ariz. 317, 321, 414 P.2d 137, 140 (1966).

In order to correct what we thought was a misconception of Wollum, supra, we later stated:

“We hold that where there is a prior scheduled industrially related injury, the Commission may not ignore the previous injury when the workman suffers a second industrial injury. Anything in Wollum, supra, to the contrary is by this opinion overruled. In the case of a prior non-industrially related injury which would have been a scheduled award had it been industrially related, there is a presumption that the prior injury had an effect on the earning capacity of the workman at the time of the second injury although this presumption can be overcome as it was in Wollum and Goodyear, supra.” Ronquillo v. Industrial Commission, 107 Ariz. at 544, 490 P.2d at 425. See also Yanez v. Industrial Commission, 21 Ariz.App. 367, 519 P.2d 220 (1974).

Following Ronquillo, supra, this court again recognized that there was a difference between an earning capacity disability and a disability or physical impairment having no effect upon the claimant’s ability to work:

“We adopt the definitions of the terms ‘permanent impairment’ and ‘permanent disability’ found in the Preface to the AMA Guides:

“ ‘(1) Permanent Impairment—This is a purely medical condition. Permanent impairment is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved, which abnormality or loss the physician considers stable or non-progressive at the time evaluation is made. It is always a basic consideration in the evaluation of permanent disability.

“ ‘(2) Permanent Disability.—This is not a purely medical condition. A patient is “permanently disabled” or “under a permanent disability” when his actual or presumed ability to engage in gainful activity is reduced or absent because of “impairment” which, in turn, may or may not be combined with other factors. . ’ ” Smith v. Industrial Commission, supra, 113 Ariz. at 305-06, 552 P.2d at 1199-1200, fn. 1.

Determination of permanent impairment is a medical question while evaluation of a permanent disability is a law question.

Paragraph E of A.R.S. § 23-1044 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.”

Paragraph E has been interpreted to mean that if there is a previous injury, upon a second injury resulting in a disability, the second injury shall be computed in relationship to the first injury and be treated as unscheduled rather than scheduled. Woods v. Industrial Commission, 91 Ariz. 14, 368 P.2d 758 (1962). Thus, if there is a previous industrially related scheduled injury and a second industrial injury, the second injury must be treated as unscheduled rather than scheduled even though the second injury would normally be a scheduled injury if it had been the first injury. Crowder v. Industrial Commission, 81 Ariz. 396, 307 P.2d 104 (1957).

But what about a prior non-industrial injury of the scheduled type? If Ronquillo and Smith, supra, were the only cases of this court on the subject, there would be no need to consider the question further. This court has, however, in construing Paragraph E of A.R.S. § 23-1044, taken a view that appears to be in conflict with Ronquillo and Smith, supra:

“As can be seen, all the cases not enumerated in subsection B (schedule awards) . must be compensated pursuant to the provisions of subsections C, D and F, with an amount which represents the employee’s reduced monthly earning capacity except those cases enumerated under subsection E, quoted supra. Subsection E does not make any reference to reduced monthly earning capacity. It only requires that the percentage of disability caused by a subsequent injury be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability. Hence, nothing can be found within the language of subsection E which requires that the previous disability be one which reduced the employee’s monthly earning capacity. Only a showing of a previous disability, as in the instant case the ‘loss of an eye’ is required * * * Ross v. Industrial Commission, supra, 112 Ariz. at 255, 540 P.2d at 1236.

We believe Ross, supra, was incorrectly decided. Paragraph C discusses “disability for work,” and Paragraph E enumerates such disabilities as “the loss of one eye, one hand, one foot or otherwise,” which are all scheduled disabilities and in which there is a non-rebuttable presumption that the injury is a disability for work. Ronquillo, supra. We do not believe that any physical impairment, the result of a prior nonindustrial accident, is a “previous disability” for the purposes of Paragraph E unless there is some evidence, no matter how slight, that it is also an earning capacity disability. To hold that after a non-industrial injury, any physical impairment will convert a second scheduled injury into an unscheduled injury, would, in effect, do completely away with all scheduled injury awards since it is a rare person indeed who does not have some previous physical impairment as a result of some prior injury. However attractive it may be to wipe away the artificial and illogical differences between scheduled and unscheduled awards, that is not our prerogative but the responsibility of the legislature.

But it is contended that Ross follows the prior case of McKinney v. Industrial Commission, 78 Ariz. 264, 278 P.2d 887 (1955). In Ross, supra, we quoted from McKinney:

“‘The thought is advanced that possibly when the statute speaks of prior disability, prior industrial accident disability only is meant. We cannot agree with this. We cannot read the word “industrial” into the statute which merely mentions previous disability.’ 78 Ariz. at 266, 278 P.2d at 888.” Ross, supra, 112 Ariz. at 256, 540 P.2d at 1237.

And we stated:

“We cannot read the words ‘earning capacity disability’ into the statute when only a previous physical disability is referred to.” Ross v. Industrial Commission, supra, 112 Ariz. at 256, 540 P.2d at 1237.

In McKinney v. Industrial Commission, supra, the claimant had lost a leg at age 8 and suffered an industrial injury to the other leg at age 46. The Commission made a scheduled injury award and the Arizona Supreme Court properly set aside the award. The previous injury would have been scheduled had it been industrially related. The court stated:

“* * * We must of course find a purpose for each subdivision of the section. This court has held that in the event of multiple scheduled injuries occurring at the same time, our workmen’s compensation law properly construed requires that such multiple injuries be removed from the schedule and be compensated by allowing for a non-scheduled disability calculated on a percentage basis. In other words, the extent of the disability is measured by the total effect upon earning power resulting from the multiple scheduled injuries. * * * ” 78 Ariz. at 266, 278 P.2d at 888.

And:

“* * * It is suggested that the prior loss of petitioner’s right leg did not effect his earning power and there would be no percentage of disability to deduct from his present aggregate disability. It seems extremely unrealistic to say that a man whose sphere of employment is industrial labor has no loss of earning power by the loss of a leg, especially when subdivision (e) recognizes it as causing some disability. Under all the conditions it may be great or slight but there would be something, and that something must be determined by the commission from a consideration of all influencing factors.” 78 Ariz. at 266, 278 P.2d at 888.

We do not believe that McKinney supports the result in Ross, supra.

We hold that when the statute says “disability,” it means earning capacity disability even though the effect upon the workman’s earning capacity may be minimal. As we earlier stated:

“The word ‘disability’ as used in our Compensation Act, does not mean disablement to perform the particular work petitioner was doing at the time of his injury, but refers to injuries which result in impairment of earning power generally. * * It applies to earning power and not to inability to do a certain class of work.” Savich v. Industrial Commission, 39 Ariz. 266, 270, 5 P.2d 779, 780 (1931).

As to the instant case, the prior injuries which resulted in a 40% service-connected permanent disability are most certainly earning capacity disabilities. It is unreasonable to find that, as to a man engaged in industrial labor, a 40% permanent physical disability does not result in a disability for work.

Opinion of the Court of Appeals, 118 Ariz. 505, 578 P.2d 184 (App.1977), vacated. Award set aside.

HAYS, HOLOHAN and GORDON, JJ., concur.