(dissenting).
I am compelled to dissent from the majority opinion. I cannot agree with the disposition made nor the reasons given for setting the award aside. However, I do agree with the conclusion of the majority and subscribe to the reasons given therefor in the determination that the effect of the Industrial Commission award was that petitioner had suffered a “temporary total disability” and that the award so construed was not res judicata.
I believe that there is no justification in law for misconstruing the plain provisions of subsection (c) of .Section 56-957, A.'C.A. 1939.
In subsection (a) of this section, provision is made for the amount of compensation that will be paid for temporary partial disability.
Subsection (b) fixes the amount of compensation that will be paid for disability deemed “permanent partial” (this includes the so-called scheduled injuries).
Subsection (c) relates to the so-called “odd lot” disabilities for which no specific provision is made in subsection (b). This subsection (c) in its entirety reads as follows: “(c) In cases not enumerated in subsection (b), where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, but the payment shall not continue after the disability ends, or the death of the injured person, and in case the partial disability begins after a period of total disability, the period of total disability shall be deducted from such total period of compensation.”
In the instant case the commission was faced with the problem of determining the amount of compensation to be paid to the petitioner who had not suffered one of the *348so-called “scheduled injuries”. The specific language of this section, so far as applicable to him, is that “ * * * where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, * * *.” This identical language appeared at the time of the first enactment of the law providing for workmen’s compensation insurance, the same being Chapter 83, Session Laws of 1925. This particular subsection under scrutiny appeared as subdivision (w) of paragraph numbered 2 of subsection (c) of section 70.
This statutory formula has been repeatedly passed upon by this court and prior to now it has never given any concern as to its meaning. The language is free of any ambiguity or uncertainty. The compensation that shall be paid is equal to fifty-five per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter.
What does “thereafter” refer to? It must of necessity refer to that undetermined time in the future when the -injured workman will return to work and earn wages. It is only when he attempts to return to work or actually returns to work that the workman can discover what his capabilities are and what his chances are for securing employment and retaining it. The majority opinion now states that the context of the Act demands that the word “thereafter” must be restricted to mean “immediately thereafter”. This of course creates an absurd situation because no workman seriously injured is able to return to work immediately. The petitioner in this case was not able to return to work for five years. If the amount of compensation to be paid to petitioner is to be fifty-five per cent of the difference between his average monthly wages before the accident and what he was able to earn immediately after the injury, then he should receive fifty-five per cent of $241.20, or $156.78.
The majority opinion has now made this subsection read as follows: “Where the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter, which shall arbitrarily be fixed, at the average wage paid for such employment or job or similar employment if such job or employment was in existence at the time of his injury. (Italics new)” This opinion is to the effect that the legislature intended and contemplated that awards were to be made in purchase power dollars. Why did the applicant return to work? Manifestly for the purpose of earning wages. The opinion is to the effect that no attention shall be paid to what the *349employee actually earns upon being re-employed, but that consideration shall be given only to the amount of the wages that were paid for this new job back at the time of the accident.
If the court is to rewrite the law (by construction), it occurs to me that it would be much more sensible to announce that in so far as wages are to be considered in determining the loss of earning capacity, such loss should be measured by the difference between present wages of the employee and present wages of those engaged in the employee’s former occupation. This was the essence of petitioner’s proposition of law. In arguing this proposition, in his brief, petitioner said: “In order to arrive at a minimum award in this matter the Commission has used the high figure in plaintiff’s present employment and the low figure for structural iron workers. It seems logical to us that consistency at least would require that the percentage of disability be computed upon the basis of fifty-five per cent (55%) of the difference in the monthly wage of an office worker and steel worker at the present time or between those two at the time of injury (Emphasis supplied.) Please note the last nine italicised words. These words are the genesis of the majority opinion. No proposition of law was presented promulgating this idea, nor was it argued; still, these nine words are the basis for this court rewriting the statute and overruling all of its prior declarations on this identical formula.
The illustrations contained in the majority opinion with reference to employees A, B, and C, supposedly receiving similar injuries and all given a temporary total disability rating and returning to work at different times, with differing allowances resulting therefrom, are fallacious and have no foundation in fact. The presumption is that the commission is “on its toes”, so to speak, and keeps in touch with the current earnings by recipients of disability awards. Hence it should know at all times what wages B receives after he returned to work. Under the illustration given, A would then be receiving the same wages. A’s compensation at that time would be reduced to that given to B. The same reasoning is applicable to the illustration given with reference to C. That the commission attempts to keep abreast of its awards and the earnings of the recipients of compensation is demonstrated in this case. When the petitioner came before it to ask for additional allowances for a new prosthesis, the commission discovered that the petitioner was employed and earning wages in the sum of $223.50 per month. This information immediately prompted the calling of a hearing to determine whether the amount of his award should not be reduced. Referring to the petitioner as A, and again reverting to the illustrations contained in the majority opinion, if B, who was injured at the same time that A *350was injured, returned to work at the time that this adjusted award was made, he (B) would receive the same amount of compensation as A would receive on his reduced award.
I mentioned above that the statutory-formula has been repeatedly passed upon by this court and that it had never given any concern. In Kilpatrick v. Hotel Adams Co., 1933, 42 Ariz. 128, 22 P.2d 836, 837, the court was considering this identical statutory formula and there said (Ross, C. J.): “ * * * Hereunder it is made the duty of the commission to determine how much the petitioner is able to earn since his injury, using the formula prescribed, or so much thereof as is applicable to the facts, and to award him compensation equal to 55 per cent, of the difference between that and what he was earning before the accident * * (Emp. supplied.)
In Savich v. Industrial Commission, 39 Ariz. 266, 5 P.2d 779, 780, this court said (Ross, J.) : “ * * * 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. * * * ” (Citing cases.)
Of course, this statement is not persuasive upon the majority because they are not interested in his present earning capacity or the amount that he actually earned in his new job but only in the amount of wages paid for his present employment at the time of his injury. In Six Companies, Inc., v. Industrial Commission, 42 Ariz. 501, 27 P.2d 678, this court said (Ross, C. J.): “ * * * The employee’s average monthly wage at the time of his injury is one of the essential factors in arriving at an award, and another is the average monthly wage he is able to earn after his injury. These must be found by the commission, which shall then award the employee 55 per cent, of the difference between the two.
“What Grant’s wages, either before or after injury, were we cannot determine from the record and it is quite apparent they were not found by the commission. * * * (Emphasis supplied.) and in Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160, 161, we said (Udall, J.) : “The statute just quoted states explicitly of what the award shall consist. It is 55% of the difference between the claimant’s monthly wages before the accident and the monthly wages he is 'able to earn’ thereafter. (Citing cases.)” (Emphasis supplied.)
This section again was under consideration in Kennecott Copper Corp. v. Industrial Commission, 1945, 62 Ariz. 516, 158 P.2d 887, 892. There we said (Morgan, J.) : “(15) There may be some difficulty in determining what monthly wages the applicant will be able to earn. This is a duty, however, which the law imposes upon the commission. It is under no compulsion to make an award until it is able to *351determine in some way what the wages of the employee will be. * * * ” (Emphasis supplied.)
In Standard Acc. Ins. Co. v. Industrial Commission, 1947, 66 Ariz. 247, 186 P.2d 951, 953, which opinion was concurred in by Justice Stanford, we said that (LaPrade, J.) : “ < * * wilere the injury causes partial disability for work the employee shall receive, during such disability, compensation equal to fifty-five (55) per cent of the difference between his average monthly wages before the accident and the monthly wages he is able to earn thereafter * * *.’ ” and particular emphasis was laid on the words “wages he is able to earn thereafter”.
In our case of Matlock v. Industrial Commission, 1950, 70 Ariz. 25, 215 P.2d 612, 615, authorized by Justice De Goncini, there appears this language: “(12) * *. His loss of earning power, then, would be the difference between the wages he was earning at the time of his injury and the wages the commission determines he could earn at the work he is able to do at the time of the award regardless of whether or not he is able to obtain work. * * * ” (Emphasis supplied.) This opinion was concurred in by Justices Stanford and Phelps.
And in Ocean Accident & Guarantee Corp. v. Kilpatrick, 1934, 43 Ariz. 321, 30 P.2d 839, the situation under consideration was spelled out arithmetically. The question there was what was the amount of compensation to be paid to the injured employee. His wages at the time of the accident were $150 per month. His earning power had been reduced seventy-five per cent or from $150 per month to $37.50, a difference of $112.50. In this behalf the court said: “ * * * His compensation, according to the formula prescribed in subdivision (w), par. 2, part C, § 1438, Revised Code of 1928, is 55 per cent, of the difference between his earning power before his injury and his earning power after his injury, which would be $61.88 instead of $73.13, as calculated. * * * ” The section referred to in the quotation is the identical section now under consideration.
In view of the repeated and uniform interpretation of the plain language of this section, it seems to me that it is less than charitable to say, as does the majority, that “some confusion apparently has arisen in the mind of the commission as to the meaning of the term ‘and the monthly wages he is able to earn thereafter.’ This confusion, no doubt, arises out of its interpretation of the word ‘thereafter’. * * ” What the majority are saying is that this court for the past eighteen years has been confused, including all of the members signing the majority opinion.
I seriously question the judiciousness at this late date of evolving a new economic philosophy and attributing to it “legislative intention” of the year 1925. The award should be affirmed.