Opinion
No. 1 CA-IC 622.
December 20, 1971.
Writ of certiorari to review lawfulness of an award of the Industrial Commission of Arizona, (Claim No. 9/5 11/43). The Court of Appeals, Case, J., held that where petitioner had sustained industrial injury in 1941 which resulted in an award in April of 1944 for a 20% functional loss of use of his right leg, treatment of second industrial injury resulting in 20% functional loss of use of left leg as a "scheduled" injury and award of permanent partial disability compensation accordingly constituted error.
Award set aside.
Norman Herring, Phoenix, for petitioner.
William C. Wahl, Jr., Chief Counsel, Industrial Comm. of Ariz., Phoenix, for respondent.
Robert K. Park, Chief Counsel, State Compensation Fund by Harlan J. Crossman, Phoenix, for respondent employer-carrier.
This case is before the Court by writ of certiorari to test the lawfulness of an award and finding of The Industrial Commission of Arizona awarding petitioner permanent partial disability compensation as a "scheduled" injury equal to 20% functional loss of use of the left leg.
The petitioner had a prior industrial injury in 1941 which resulted in an award in April of 1944 for a 20% functional loss of use of his right leg.
After this case was briefed and at issue, our Supreme Court issued its opinion in Ronquillo v. Industrial Commission, 106 Ariz. 542, 490 P.2d 423 (filed 11 November 1971), which is dispositive of the issue in this case. Ronquillo states:
"In the instant case, the workman having received a prior scheduled 20% partial disability award, it was error to treat the second injury as a scheduled award.
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." Id. at 543, 490 P.2d at 424.
See also Duron v. Industrial Commission, Ariz. App., 491 P.2d 31 (filed 8 December 1971).
In the instant case, the second industrial injury was treated as a "scheduled" injury which has by Ronquillo been declared to be erroneous.
The award is set aside.
STEVENS, P.J., and DONOFRIO, J., concur.