Gardner v. Industrial Accident Commission

GRIFFIN, J.

Petitioner, E. A. Gardner, seeks to review a decision, on rehearing, of the Industrial Accident Commission wherein petitioner was awarded certain compensation on account of a permanent disability sustained by him following an industrial injury. Two petitions have been filed, which have been consolidated.

In said decision on rehearing it was found that the total present permanent disability suffered by petitioner amounted to 58¾ per cent but, inasmuch as petitioner had sustained a prior permanent disability amounting to 12 per cent, said 12 per cent was deducted from the total of 58¾ per cent. The percentage of permanent disability attributed to the injury was therefore fixed at 46¾ per cent, entitling the employee to the total sum of $4,675.

It is the petitioner’s contention that he is entitled to the percentage of 58% without deducting the 12 per cent therefrom.

The only question presented may be stated as follows: Did the Industrial Accident Commission exceed its powers and jurisdiction in finding that the percentage of permanent disability amounting to 12 per cent, which petitioner had sustained as a result of a prior injury should be deducted from the combined permanent disability amounting to 58¾ per cent, which was produced by the prior injury and a later injury, thus leaving to petitioner the percentage of 46¾ ?

The facts are undisputed and briefly show that on June 1, 1937, petitioner, while employed as a carpenter, sustained an injury which arose out of and occurred in the course of his employment. The injury was to his left leg and was serious enough to necessitate the subsequent amputation of said leg between the knee and hip joint. Some time prior to June 1,

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1937, petitioner had sustained a permanent disability of the left foot, consisting of partial stiffness of the ankle joint, amounting to 12 per cent. This prior permanent disability had been sustained while petitioner was employed in the state of Nevada by an employer other than the one for whom he was working at the time of the injury of June 1,1937.

We have had cited to us for our enlightenment the cases of