Dutra v. Industrial Com'n of Arizona

659 P.2d 18, 135 Ariz. 59, 1983 Ariz. LEXIS 149
CourtArizona Supreme Court
DecidedJanuary 6, 1983
Docket16120-PR
StatusPublished
Cited by14 cases

This text of 659 P.2d 18 (Dutra v. Industrial Com'n of Arizona) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dutra v. Industrial Com'n of Arizona, 659 P.2d 18, 135 Ariz. 59, 1983 Ariz. LEXIS 149 (Ark. 1983).

Opinions

CAMERON, Justice.

We granted James E. Dutra’s petition for review of an opinion of the Court of Appeals, Division One, which affirmed the Industrial Commission’s award of scheduled benefits under A.R.S. § 23-1044(B)(21). We have jurisdiction pursuant to A.R.S. § 12-120.24, and Rule 23, Arizona Rules of Civil Appellate Procedure, 17A A.R.S.

We must answer only one question on appeal: Must scheduled disabilities under our workmen’s compensation statute be rated exclusively in terms of physical functional impairment, without reference to the occupation in which the claimant is engaged at the time of his injury?

The facts necessary for determining this issue are the following. The appellant began work as a weight training instructor at the respondent Grecian Health Spa in Sep-' tember 1978. He had earned degrees in physical education, psychology and health education, and had previously taught and coached baseball and football at the high school and college levels prior to taking the health spa job. Less than two months into his employment, appellant injured the tendons in his left arm while demonstrating a barbell exercise known as “curling.” Following extensive medical testing and therapy, it was determined that appellant had suffered a severe loss of strength in his arm, but very little loss of motion. Surgery was recommended in possible amelioration of the condition, but appellant elected not to undergo surgery.

Based on the medical test results, the respondent carrier sent a notice of claim status terminating the appellant’s temporary benefits as of 5 April 1980 with a 4% scheduled permanent partial disability of the left arm. The appellant protested the notice and formal hearings were held. The administrative law judge found a 5% scheduled permanent partial disability of the left arm based on a 5% rating of permanent impairment under the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.” The administrative law judge found an additional 5% .scheduled permanent partial disability of the left arm based on the loss of strength causally related to the November 1978 injury. This finding was based in part on deposition testimony by the appellant’s treating physician that his patient had suffered loss of strength in the 0-75% range — that is, no loss when the arm was at rest, and a peak loss of 75% of full normal strength when maximum exertion was demanded of the arm’s musculature. The 5% disability attributed to loss of strength was challenged on appeal.

The Court of Appeals, Division One, held that loss of strength constitutes a compensable scheduled loss of use under A.R.S. § 23-1044(B)(21). The court noted our finding in Adams v. Industrial Commission, 113 Ariz. 294, 295, 552 P.2d 764, 765 (1976) that the A.M.A. guides are not the exclusive source for rating physical impairment, and that such rating can be based on competent medical evidence. Dutra v. Industrial Commission, et al., 135 Ariz. 86, 659 P.2d 45 (1982); accord Cavco Industries v. Industrial Commission, 129 Ariz. 429, 432, 631 P.2d 1087, 1090 (1981). The Court of Appeals also held that the administrative law judge’s determination of an additional 5% permanent partial disability from loss of strength, based on lay as well as medical [61]*61testimony and personal observation of the petitioner, was supported by the evidence. Finally the court held that scheduled injuries under A.R.S. § 23-1044(B)(21) are to be viewed in terms of abstract physical impairment unrelated to a specific occupation.

We disagree with the Court of Appeals that loss of use in scheduled injuries must be determined in the abstract without consideration of the job at the time of the injury. Our statute provides for compensation as follows:

“21. For the partial loss of use of a finger, toe, arm, hand, foot, leg, or partial loss of sight or hearing, fifty per cent 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, * * A.R.S. § 23 — 1044(B)(21).

It is to be noted that as to scheduled injuries, the payment for loss of use is based exclusively on the amount of wages the workman was receiving at the time of the injury, A.R.S. § 23-1044(B), and for which premiums were paid, whereas in an unscheduled award, the payment is based upon the difference between the wage at the time of the injury and the workman’s earning capacity after the injury. A.R.S. § 23-1044(C). Also, in scheduled injuries, payments are for a limited period of time, A.R.S. § 23-1044(B), and not for the period of disability as is the case in unscheduled injuries as provided in A.R.S. § 23-1044(C). A third distinction is that although an unscheduled award may take into account other employment available to the workman in his disabled condition, Wiedmaier v. Industrial Commission, 121 Ariz. 127, 128-29, 589 P.2d 1, 2-3 (1978), a scheduled injury is compensated without regard to what other employment may be available. A.R.S. § 23 — 1044(B); see Alsbrooks v. Industrial Commission, 118 Ariz. 480, 481-82, 578 P.2d 159, 160-61 (1978).

Compensation then for a scheduled injury is made solely with reference to the salary the workman was receiving at the time of the injury. We disagree with the Court of Appeals that “scheduled injuries under A.R.S. § 23-1044(B)(21) are to be viewed in terms of abstract physical impairment, and not related to any specific occupation.” Dutra, supra. Admittedly, as to unscheduled injuries, the law is contrary:

“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

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Dutra v. Industrial Com'n of Arizona
659 P.2d 18 (Arizona Supreme Court, 1983)

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659 P.2d 18, 135 Ariz. 59, 1983 Ariz. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutra-v-industrial-comn-of-arizona-ariz-1983.