Beasley v. Industrial Commission

EUBANK, Judge

(specially concurring).

I concur in the result reached by a majority of this Court setting the award aside, however since I disagree on the basis, I am constrained to write a separate opinion.

We issued our writ of certiorari in order to review the lawfulness of an award of The Industrial Commission of Arizona, which is based upon its statutory interpretation of A.R.S. § 23-1042, captioned, “Basis for computing average monthly wage of minor permanently incapacitated.” The petitioner contends that the legislative in*398tention of § 23-1042 is clear, and that the Commission’s award based on a date, other than the date of injury, is erroneous and must be set aside. The respondent-Commission contends that the statute is ambiguous and that its interpretation of its effective date as being the petitioner’s twenty-first birthday requires our affirmance of the award.

The facts are not in dispute. On July 1, 1963, the petitioner, 17 years old at the time, was injured in an industrial accident when he was shot through the spine which resulted in paralysis and a permanent injury. The Commission awarded him temporary total disability benefits in the sum of $289.83 per month until August 19, 1969. On that day the Commission increased the award to $371.32 per month, retroactive to petitioner’s 21st birthday — February 5, 1967. The August 19, 1969 award was increased by another award on April 24, 1970, to $477.17 per month, retroactive to February 5, 1967, by stipulation of the parties.

The petition specifically contends that the clear intention of A.R.S. § 23-1042, requites the August 19, 1969, and April 24, 1970 awards be dated from the date of the injury (July 1, 1963) rather than from February 5, 1967, his twenty-first birthday, as was done by the Commission. The respondent-Commission specifically contends that its April 24, 1970 award is proper under A.R.S. § 23-1042, which is ambiguous in that it fails to state “when” the compensation is payable, or if not ambiguous, then the award would only become final at some future date when petitioner’s injury was found by the Commission to be stationary, which has not as yet occurred.

A.R.S. § 23-1042 reads as follows :

“If it is established by competent evidence that an injured employee is under twenty-one years of age and his incapacity is permanent, his average monthly earning capacity shall be deemed, within the limits fixed by §§ 23 — 1041 and 23-1046, to be the monthly amount which under ordinary circumstances he would probably be able to earn at the age of twenty-one years in the occupation in which he was employed at the time of injury, or in any occupation to-which he would reasonably have been promoted if he had not been injured. If the probable earnings at the age of twenty-one years cannot be reasonably determined, his average earnings shall be based upon four dollars per day for a six-day week.” (Emphasis added)

The applicable part of A.R.S. § 23-1041,, subsec. A reads:

“A. Every employee of an employer within the provisions of this chapter who' is injured by accident arising out of and in the course of employment, or his dependents in event of his death, shall receive the compensation fixed in this, chapter on the basis of such employee’s-average monthly wage at the time of injury.” (Emphasis added)

Respondent-Commission’s Findings 3, 4- and 5 of the award of April 24, 1970, are as follows:

“3. That applicant’s incapacity as a result of said injury is of a permanent nature and he is therefore entitled to compensation from and after February 5, 1967 based upon the wage which under ordinary circumstances he probably would have been able to earn at the age of twenty-one years in the occupation in-which he was employed at the time of injury, or in any occupation to which he reasonably would have been promoted if he had not been injured.
4. That under ordinary circumstances-applicant probably would have been able-to earn the sum of $455.17 per month in the employment in which he was employed at the time of injury if he had not been injured, as an adult.
5. That applicant is entitled to compensation from and after February 5, 1967" based upon an average monthly wage of $455.17.”

These findings meet the two statutory pre-conditions to the applicability of A.R.S. § 23-1042, minority and permanent inca*399parity. The only question remaining, as respondent states it, is “when” or from what date is the compensation to be paid?

It goes without saying that the intention of the legislature as expressed in the foregoing statutes controls our construction of them, Industrial Commission v. Harbor Insurance Co., 104 Ariz. 73, 449 P.2d 1 (1968); that statutes in pari materia must be construed to give harmony and effect to all such statutes if possible, State ex rel. Larson v. Farley, 106 Ariz. 119, 471 P.2d 731 (1970) ; Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652 (1962); and that the provisions of a special statute govern over those of a general statute. Desert Waters, Inc. v. Superior Court, supra.

Section 23-1041, subsec. A was enacted into law in 1925 (§ 70, Chapter 83, L. 25) in exactly the same form it is today. It constituted a part of our original comprehensive Workmen’s Compensation Act. In the original legislation no provision was made for the special treatment of minors injured within the course of their employment nor was a different method provided for calculating their average monthly wage. Their claims were handled on the same basis as adults. See S. H. Kress & Co. v. Superior Court, 66 Ariz. 67, 182 P.2d 931 (1947). This situation continued until 1949 when the legislature enacted Chapter 74, Laws of 1949, entitled,

"Relating to Workmen’s Compensation; Providing for the Determination of the Earning Capacity of Minors, and Amending Article 9, Chapter 56, Arizona Code of 1939, by adding Section 56-952(a).”

This Act is A.R.S. § 23-1042, set out in full above. Although the title is much broader than the provisions of the Act itself, it is clear to me that the legislature intended to enact a special Act which relates solely to a situation where a minor is permanently incapacitated in the course of his employment. When these two facts occur, the minor’s average monthly earning capacity, “ * * * shall be deemed, within the limits fixed by §§ 23-1041 and 23-1046 (death benefits). * * * ” to be computed on the basis that he would “probably be able to earn at the age of twenty-one years in the occupation in which he was employed at the time of injury.” The limits fixed by A.R.S. § 23-1041, supra, I believe, refer to the “when” that respondent says is lacking in A.R.S. § 23-1042, that is, the minor shall receive his compensation based upon the A.R.S. § 23-1042 special definition of average monthly wage applicable to permanently incapacitated minors at the time of injury, which is one of the limits fixed by A.R.S. § 23-1041, subsec. A. A.R.S. § 23-1041 makes no reference to a twenty-first birthday, other than subparagraph (F) which provides:

“Prior to determination of average monthly wage, compensation shall be paid on a basis of a minimum monthly wage of two hundred dollars for employees twenty-one years of age or over.”

This subsection merely highlights the fact that minors and adults are treated by the law on a different basis or as a different class, but it cannot be said to support the Commission’s conclusion in any regard.

The only Arizona case involving the construction of A.R.S. § 23-1042 is Herman v. Industrial Commission, 100 Ariz. 312, 414 P.2d 134 (1966). Counsel for both sides of this appeal cite it in support of their respective contentions. However, the only question before the Supreme Court in Herman was, “ * * * whether a minor claimant may seek to have an award reopened after he has reached majority where the Commission failed to consider A.R.S. § 23-1042 in computing the amount of compensation to which claimant is entitled.” The Supreme Court held that § 23-1042 was mandatory upon the Commission in a situation involving a minor; and that where the Commission failed to use the applicable statute § 23-1042 in computing the award, the minor experienced a “changed condition” at his twenty-first birthday which permitted him to petition to reopen the award and the Commission was re*400quired as a mandatory duty to adjust the award to the proper statutory basis. Herman does not discuss the specific question before this Court. However, it does discuss the nature of § 23-1042, in these words:

“The legislature, by enacting A.R.S. § 23-1042, recognized that a minor claimant undergoes a 'change of condition’ between the time of the award and the date he reaches majority, and by virtue of this statute it is mandatory upon the Commission to determine the extent to which a particular minor claimant will undergo such a change of conditions, and reflect this determination in its initial award.” 100 Ariz. at 315, 316, 414 P.2d at 136.

Herman merely confirms my statutory analysis set out above.

Other jurisdictions with similar statutes have recognized that a minor is in a different position than an adult worker, and have provided that their respective commissions may consider the minor’s future earning capacity in determining the award, and apply it from the time of the injury. Arizona’s mandatory statute is unique in this respect, (e. g., Stauble v. Freeman Publishing Co.; 6 A.D.2d 946, 175 N.Y.S.2d 730 (1958); Harmon’s Texaco Service Station v. Kessinger, Okl., 365 P.2d 131 (1961) ; Greenfield v. Industrial Accident Board, 133 Mont. 136, 320 P.2d 1000 (1958)); see also 2 Larson, Workmen’s Compensation Law, p. 59 § 57.33 (1970).

The respondent-Commission’s question relating to the ambiguity results from the same myopia its position in Herman did. In Herman the Commission simply ignored § 23-1042; in the case at bar it views it through § 23-1041, or the general statute as controlling the special statute, rather than the other way around. It is my opinion that the provisions of § 23-1042 are clear and not ambiguous and that they require the Commission’s award to be based on the date of the minor’s injury.