OPINION
Must an industrial injury which causes facial disfigurement result in an unscheduled award when the workman has previously sustained a schеduled industrial injury? We determine that the answer is yes.
A chainsaw jackknifed into the face of petitioner, Edward S. Morеno, severely cutting his cheek. His workman’s compensation claim was accepted for benefits and his injury wаs determined a permanent disability. The Industrial Commission’s award was for facial disfigurement, a scheduled injury. Petitioner rеquested a hearing alleging that the facial injury should be treated as unscheduled. The hearing officer considеred testimony by petitioner and medical reports, as well as documents relating to a prior scheduled industriаl injury. The hearing officer’s award was for facial disfigurement, a scheduled disability.
Petitioner raises two challengеs to the award. First, he argues that his chainsaw injury caused functional impairment to his cheek muscles as well as facial disfigurement. Second, he urges that, even if he failed to prove functional impairment to his cheek muscles, the award for the facial disfigurement should have been unscheduled because he had previously suffered an industrial accident which resulted in a scheduled award.
In his first argument petitioner contends that, since the chаinsaw accident resulted in a functional impairment as well as facial disfigurement, the injury is not enumerated in A.R.S. § 23-1044 B(22), and is, therefore, an unscheduled injury.
A.R.S. § 23-1044 B(22) provides:
B. Disability shall be deemed permanent partial disability if caused by any of the following sрecified injuries, and compensation of fifty-five per cent of the average monthly wage of the injured employee, in addition to the compensation for temporary total disability, shall be paid for the pеriod given in the following schedule:
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22. For permanent disfigurement about the head or face, which shall include injury to оr loss of teeth, the commission may, in accordance with the provisions of § 23 — 1047, allow such sum for compensation thereof as it deems just, in accordance with the proof submitted, for a period not to exceеd eighteen months.
As is pointed out by petitioner, an injury which results in functional impairment other than disfigurement or loss of teeth does not fall within the plain language of paragraph 22. To disfigure is to mar the appearance of an object. In our view, paragraph 22 is designed to compensate individuals who suffer facial marring as a result of an industrial accident.
Petitioner urges that functional impairment to his speech caused by the cutting of his cheek muscles brings his injury out of § 23-1044 B(22) and into the unscheduled class. We agree with petitioner’s assertion of law, but find that hе failed in his burden of proof that any functional impairment resulted from the industrial injury. The award is amply supported in this rеgard by the written report of Dr. Wendell B. Whitacre:
On examination, the scar of the left cheek continues to mаture uneventfully. He has a symmetrical smile, as noted previously, and he can whistle. He had no problem with his speеch during the interview. He does have slight to moderate cosmetic facial disabilities from the *300 extensive scar. I feel that his complaints are real but I would anticipate that many of them would continue to ameliorate with time. He has no functional disability with the exception of the popping of the left T-M joint area with chеwing on the left side.
In his second argument petitioner contends that his facial disfigurement award should have been unscheduled because he had previously suffered a scheduled industrial injury. The record shows that, as a result of the previous industrial accident, petitioner had been awarded compensation for a thirty-five percеnt scheduled disability to the left arm.
Arizona cases have established that, for purposes of A.R.S. § 23-1044 E,
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a scheduled рermanent partial disability, when considered with a prior industrially-related permanent partial scheduled injury, must rеsult in an unscheduled award.
Ronquillo v. Industrial Commission,
Relying on
Milam
v.
Industrial Commission,
In Milam, however, the issue was whether a claimant was entitled to scheduled rather than unscheduled awards for multiple simultaneous injuries which resulted in no loss of earning caрacity. The court there was not called upon to analyze the question of whether a workman who suffers fаcial disfigurement should be allowed to include the effects of a prior scheduled injury in the determination of his еarning capacity disability following the facial injury. The statement made in Milam that facial disfigurement is an injury “which is neither sсheduled nor unscheduled” is of no aid in resolving this case.
In
Scott v. Industrial Commission,
Since the hearing officer entered a scheduled award in this case, the award must be set aside.
Notes
. A.R.S. § 23-1044 E provides:
In case there is a previous disability, as the loss of one eye, one hand, one foot or otherwise, the percentage of disability for a subsequent injury shall be dеtermined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.