Pena v. Industrial Commission

10 Ariz. App. 573 (1969) 460 P.2d 1002

Mario E. PENA, Petitioner,
v.
INDUSTRIAL COMMISSION of Arizona, Respondent, City of Glendale, Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 294.

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

November 17, 1969. Rehearing Denied December 16, 1969. Review Denied January 27, 1970.

Chris T. Johnson, Phoenix, for petitioner.

Donald L. Cross, Chief Counsel, Phoenix, for respondent Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, Phoenix, by Harlan J. Crossman, Phoenix, for respondent Carrier State Compensation Fund.

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.

STEVENS, Judge (dissenting).

I feel compelled to dissent for the reason that I believe that Jaynes v. Industrial Commission, 7 Ariz. App. 78, 436 P.2d 172, review denied by the Arizona Supreme Court on 5 March 1968, correctly states the law rather than Arnott v. Industrial Commission, 103 Ariz. 182, 438 P.2d 419, decided by our Supreme Court on 7 March 1968. It was with extreme reluctance that I concurred in our recent opinion in Heredia, cited in the majority opinion.

In my opinion unless it is crystal clear that an injury is a scheduled injury it should be held to be a nonscheduled injury. In my opinion any permanent physical impairment of the body beyond the limits of the scheduled portion of the body converts the injury to an unscheduled injury. Here there is a permanent impairment of the shoulder even though there is testimony to the effect that the residual disability resulting from the shoulder impairment manifests itself in the arm.

I recognize that the majority opinion is based upon Arnott. I recognize that Supreme Court opinions are controlling. It is my opinion that the Arnott decision should be reconsidered and declared to not be the rule. It is my opinion that the facts in the matter under consideration are distinguishable from Arnott to the point that Arnott should not apply.