(specially concurring).
While I concur with the result reached by the majority opinion that the award should be set aside, I disagree with its attack on Rule 13d and the AMA Guides for the reasons stated in my dissenting opinion in Adams v. Industrial Commission, supra. The problem here, however, goes much deeper than Adams, and entails additional discussion, in that this opinion delves into what is stated to be a conflict as to disabling pain between the Guides and the case law expressed in Matthews v. Industrial Commission, supra; Ward v. Industrial Commission, supra; Mahan v. Industrial Commission, supra; and Newman v. Industrial Commission, supra.
These cited cases have clearly asserted that objective medical findings are not required to support a finding of a disability based upon subjective symptoms of pain. Therefore, says the majority, the requirement contained within the Guides themselves that there must be objective, ratable medical findings to support subjective symptoms of pain before there can be a finding of disability, is contra to such case law.
I find no such conflict. In my opinion the majority decision ignores both the terminology and the purpose of Rule 13d as to unscheduled awards. The Rule does not, as a prerequisite to a determination of permanent disability, require a rating of functional impairment as to such awards under A.R.S. § 23-1044 (C). It merely states that “ . . . Any rating of the percentage of functional impairment shall be in accordance with the standards . . . . ” set forth in the Guides. In other words I do not read the statute and rule as requiring a percentage rating for “unscheduled” injuries under § 23-1044(C) in order to support an award for a com-pensable claim.
The need for a uniform system for evaluating “scheduled” injuries under A.R.S. § 23-1044(B) is obvious, since the computation of the presumed loss of earning capacity varies directly with the percentage of disability. The logic of the scheduled award provides that workers receiving the same percentage of scheduled impairment should receive the same percentage of their Average Monthly Wage for the same num*301ber of months. Unscheduled or “odd-lot” injuries could not be the subject of such a uniform system since § 23-1044(C) specifically provides that actual loss of earning capacity be compensated in such unscheduled cases. Under the latter statute the percentage of impairment is only one of many factors used to determine loss of earning capacity.
To bring about a uniform evaluation of scheduled injuries, and to provide for the orderly administration of justice, the Legislature included the following authorization to the Industrial Commission in A.R.S. § 23-1044:
“G. The commission may adopt a schedule for rating loss of earning capacity and reasonable and proper rules to carry out the provisions of this section.”
Because the loss of earning capacity in a scheduled injury is determined solely by the nature and extent of impairment, the “schedule” mentioned in § 23-1044 (G) necessarily refers to a schedule to be used in evaluating these injuries in a uniform manner.
Such a construction is, I believe, in full accord with dictum in Russell v. Industrial Commission, 8 Ariz.App. 563, 448 P.2d 407 (1968), which, although handed down prior to the adoption of Rule 13d, asserted: “we find no requirement that unscheduled physical functional disabilities must be expressed in a given percentage figure.” It is to be noted that Mahan, Ward, Matthews, and Newman all involved “unscheduled” injuries. As to such injuries, the rule requires only that any such rating, if given, shall be in accord with the AMA Guides.
Mahan constitutes a directive to the hearing officer that the absence of objective medical findings will not necessarily require a find of no permanent disability. Rule 13d is a directive to the medical profession, specifying the terms in which they must express their findings or opinions as to the amount of functional impairment. The Rule creates no direct relationship between those opinions and the hearing officer’s findings in the unscheduled injury case; and such a rating is not required, either to support a finding of permanent disability or a loss of earning capacity. While the findings of the hearing officer here make no specific reference to any lack of objective medical findings under the AMA Guides, it is apparent from the transcript of the hearing that he deemed it essential. The award must therefore be set aside.
I consider it important, however, to preserve the exclusivity of the Guides on rating pain. Any analysis of the operation of the Guides in the nebulous area of pain measurement is of course difficult for one whose background is legal rather than medical, and who is handicapped by lack of expertise and knowledge on the practical functioning of the Guides. Moreover, there is an absolute paucity of decisional law on the issue involved, and the briefs submitted by counsel give only a cursory recognition of the issue involved.
Initially, it must be noted that the Guides do rate pain when that pain can be demonstrated by measuring impairment to the nervous system. The majority opinion concedes this, but concludes that this fact does not preserve the validity of their exclusive use here since the pain in this case could not, according to Dr. Habra, be rated because there was no objective impairment.
I do not agree that the validity of the Guides was in any way disturbed by the doctor’s inability to rate petitioner’s pain because it was purely subjective. As pointed out by the majority, the Guides do not rate subjective pain. But I note that Dr. Habra, when asked how he would rate such pain, stated that he did not know how to rate it, because all such pain was relative and subjective and belonged to the patient.
To me the reasoning behind the AMA Guides’ requirement that before subjective complaints of pain can be considered within the rating scope of the Guides they must be substantiated within the parameters laid down, is to at least partially shut the door against the malingerer, particularly in the “back” cases. I am not saying that peti*302tioner here was a malingerer, especially since the doctors believed that his complaints were genuine, and I am fully cognizant of the statements by this Court in Strong v. Industrial Commission, 11 Ariz. App. 499, 466 P.2d 50 (1970), wherein it was held that a physician’s testimony that petitioner was sincere and honest in describing his symptoms overrode petitioner’s inability to demonstrate objective symptoms to account for the subjective ones. See also Matthews, supra.
But I would urge that this Court’s further intrusion into the realm of credibility of subjective pain, by denouncing the AMA Guides, is both unwise and unwarranted.