This is a special action review of an Industrial Commission award for unscheduled permanent partial disability which was based on the judicial decisions of Langbell and Espey.
On January 28, 1981, the respondent employee (claimant) injured his left wrist while working for the petitioner employer. The claim was accepted and claimant received temporary compensation and active medical treatment until November 1983. On December 14, 1983, a Notice of Claim Status was issued terminating temporary compensation and active medical treatment and finding that the industrial injury had resulted in permanent disability. A notice of permanent disability benefits was issued finding that claimant had sustained a 40% functional loss of his left minor arm and awarding scheduled permanent disability benefits. The claimant requested a hearing, alleging that his condition was not stationary and that he was in need of further active medical treatment.
Following the hearings of July 13 and August 24, 1984, the administrative law judge issued his Decision upon Hearing and Findings and Award for Unscheduled Permanent Partial Disability and Order Pending Loss of Earning Capacity Determination. The administrative law judge found, among other things, that:
Following administrative review and affirmance of the Award for Unscheduled Permanent Partial Disability, the carrier petitioned for special action review, contending that the Commission cannot lawfully grant an unscheduled disability when the evidence demonstrates that the employee has sustained a scheduled disability under A.R.S. § 23-1044(B).
In support of its argument, the carrier relies on A.R.S. § 23-1044(H), which states:
In 1980 the legislature amended A.R.S. § 23-1044 by adding language to section (G) and adding a new section (H), the pertinent portions of which have been quoted. The legislature has redefined and restated the requirement that scheduled disabilities within subsection B of that statute are to be treated as such and the language of the statute is mandatory. In view of this clear, unequivocal statutory language, the only conclusion that can be reached is that A.R.S. § 23-1044(H) legislatively overrules Langbell and Espey. This same conclusion was set forth as dictum by this court in Hunter v. Industrial Commission, 130 Ariz. 59, 62 n. 5, 633 P.2d 1052, 1055 n. 5 (App. 1981).
The claimant interjects the Dutra decision in support of his argument that A.R.S. § 23-1044(H) did not overrule Langbell and Espey. Dutra v. Industrial Commission, 135 Ariz. 59, 659 P.2d 18 (1983). The claimant contends that since Dutra was decided after the enactment of § 23-1044(H) and allows an injury to be assessed with regard to an employee's work rather
However, and wholly aside from the fact that Dutra was not a consideration in the instant proceedings, the effect of the supreme court's decision in Dutra is not to unschedule an otherwise scheduled disability as did Langbell and Espey. Dutra merely permits an increased level of a scheduled disability. Thus, Dutra does not support the reasoning or result of Langbell and Espey.
For the foregoing reasons, the Industrial Commission award is set aside.
MEYERSON and FROEB, JJ., concur.