All Star Coach, Inc. v. Industrial Commission

OPINION NELSON, Presiding Judge. This case presents one question for decision : may an injury which results from an accident which itself occurred prior in point of time to another accident also resulting in an industrial injury, be a “subsequent injury” for purposes of A.R.S. § 23-1044 E, so as to result in a general or unscheduled disability when the two injuries, otherwise scheduled in nature, are combined? The hearing officer answered this question in the affirmative and awarded an unscheduled permanent partial award. We agree and affirm the award. The operative facts in the case are not in dispute. Although this matter has been before this Court earlier, Camacho v. Industrial Commission of Arizona, 20 Ariz. App. 225, 511 P.2d 669 (1973), that cause involved a prior non-industrial injury as it might have impacted on one of the injuries [4] here in question, and is of only historical interest as regards the present factual situation. On October 3, 1969, the respondent employee, Sarah Camacho (Camacho), suffered an injury to her right knee while employed by All Star Coach, Inc. (All Star), one of the petitioners here. The claim was accepted for benefits by the Home Insurance Company (Home), the carrier for All Star and also a petitioner here. Camacho’s condition became medically stationary as a result of the October 3, 1969 injury on April 23, 1974. The insurance carrier issued a notice of claim status on April 29, 1974, terminating temporary compensation and active medical treatment because Camacho was discharged with permanent partial disability amounting to a scheduled 15% loss of use of the right leg. This notice was challenged on the basis of scheduled vs. unscheduled nature of the award, which we shall deal with infra, but there was no challenge at the Commission, nor is there one here, as to Camacho’s 15% loss of use of her right, leg. Without more, of course, the award would have been scheduled pursuant to A. R. S. § 23-1044 B(15) and (21). There is more. On October 21, 1969, Camacho suffered an industrial accident which resulted in an award entered on October 28, 1971, for a 40% loss of use of her left (major) hand, another scheduled injury, pursuant to A.R. S. § 23-1044 B, supra, subsections (12) and (21). While recognizing that the statutes and decisional law of this jurisdiction quite clearly mandate that two successive scheduled industrial injuries require that the second injury be treated as unscheduled (A.R.S. § 23-1044, supra, sections C, D, E and F; Rodgers v. Industrial Commission of Arizona, 109 Ariz. 216, 508 P.2d 46 (1973) and cases cited therein), counsel for the employer and carrier urges that the injury before us in this cause is the first injury, and therefore cannot possibly be an unscheduled award in accordance with the plain language of A.R.S. § 23-1044 E, supra.1 While this construction of the statute might be possible from a literal reading of that portion of the statute standing alone, when it is read in conjunction with the rest of the statute, as required by the accepted canons of statutory construction (E.g., Stuart v. Winslow Elementary School District No. 1, Navajo County, 100 Ariz. 375, 414 P.2d 976 (1966)), as well as in conjunction with the decisions of the Arizona Supreme Court such as Rodgers, supra, and the cases cited therein, particularly Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396 (1935), it becomes clear that such a literal reading would result in absurd situations, clearly not contemplated by the Legislature. State Board of Directors for Junior Colleges v. Nelson, 105 Ariz. 119, 460 P.2d 13 (1969); State ex rel. Church v. Arizona Corporation Commission, 94 Ariz. 107, 382 P.2d 222 (1963). We do not believe that the language of the Arizona Supreme Court in Ossic v. Verde Central Mines, supra, as set out and construed in Rodgers v. Industrial Commission of Arizona, supra, is susceptible of any construction or interpretation other than that adopted by the hearing officer : “10. That as a result of the scheduled disability awarded in Case No. 9/7-30-39 [40% loss for use of left (major) hand], and the scheduled disability sustained in the instant case [15% loss of use of right leg], the applicant has sustained two scheduled industrial injuries, and is [5] therefore entitled to an award of unscheduled permanent partial disability. [Citations to Rodgers, supra and Ossic, supra, omitted].” The fact that the accident involving the knee occurred 18 days before the accident involving the hand does not mean that the injury to the hand is forever subsequent, in terms of A.R.S. § 23-1044 E supra. Until the injuries are stationary, it is impossible to know whether either or both of them will be permanent, and thus subject to the provisions of A.R.S. § 23-1044, supra. Morgan v. Industrial Commission of Arizona, 21 Ariz.App. 526, 521 P.2d 157 (1974). On April 24, 1973, the injury to Camacho’s knee became stationary and was held to result in a 15% loss of use of the right leg, a permanent injury, Morgan, supra. This is, in our view of the law, subsequent to the injury of October 21, 1969, which resulted in an October 28, 1971 award of a scheduled 40% loss of use of her left (major) arm, for purposes of A. R.S. § 23-1044 E supra. In Ossic and Rodgers, supra, it was clearly the multiple effect, rather than the particular sequence of injuries, that was the key to the intent of the Legislature in compensating multiple scheduled injuries. In Ossie all the injuries occurred simultaneously. Our holding here is consistent with the intent of the Legislature as interpreted by the Arizona Supreme Court. The award is affirmed. SCHROEDER, concurs. Footnotes [1] A.R.S. § 23-1044 E: “E. In ease 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." (Emphasis supplied)