415 P.2d 112

#### Stanford L. RODGERS, Petitioner, v. SUNNYSIDE HIGH SCHOOL DISTRICT NO. 12, Defendant Employer, The Industrial Commission of Arizona, Respondents.

No. 1 CA-IC 71.

Court of Appeals of Arizona.

June 8, 1966.

Hirsch, Van Slyke, Richter & Ollason, by Lawrence Ollason, Tucson, for petitioner.

Robert K. Park, Chief Counsel, by Glen D. Webster, Phoenix, for respondent Industrial Commission of Arizona.

STEVENS, Chief Judge.

On 21 October 1963, while in the course of his duties as a coach, coaching being a portion of his employment responsibilities in the Sunnyside High School District, the petitioner fell and sustained an injury. This injury caused a condition of epilepsy which can now be reasonably controlled by medication.

In connection with his occupation, the petitioner signed two separate and concurrent contracts, one in relation to teaching and the other in relation to coaching. The compensation for the coaching contract was an additional $300 per year. The teaching contract of the petitioner has been renewed in successive years at an increased salary, the increase being the regular increment enjoyed by other teachers as well. At the time of the accident, the petitioner was coaching freshman football. Following the accident he was assigned to coaching track with no loss of income.

The petitioner is an industrious individual seeking all reasonable means to support his wife and four children. He engages in outside employment. At the formal hearing Rodgers testified relative to his summer employment as a supervisor of a “A-team”, being high school athletes on a temporary manpower project. He was a leader and signed up sixty boys for this OEO project; Initially they were to go to Yuma to pick melons and not having been sent to Yúma> they engaged in highway beautification. He had the responsibility, in his own words, of “hustling 80 boys around”. He testified, “we are putting them in alleys, and I have 6 teams and, with one team down-one alley and another team down another alley, and I have to run around hustling these kids”. At the time of the oral argument, both sides agreed that in reaching the decision relative to the presence or absence of a change in his monthly earning capacity, it was proper to exclude the outside non-related income.

During the oral argument the attorneys agreed that in determining the presence or absence of a loss of earning capacity, the fact of a routine salary increase or increment, should not be considered. Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959). The petitioner urges that by reason of the industrial injury and disability, he cannot now coach, and that he *398should be awarded compensation for the loss of that portion of his earning capacity.

By its Findings the Industrial Commission established that petitioner suffered a *5%*general physical functional disability. The Commission found that at the time of the Award he had the,

> “ * * * mental and physical ability to undertake and return to his regular occupations on a full-time basis without reduction in his monthly earning capacity * * * *»*

The Commission further found that the petitioner suffered no loss of earning capacity and that the petitioner would require further medication, the award making provisions therefor. The Commission retained jurisdiction.

The report of the Medical Consultation Board stated that the Petitioner:

> “ * * * is able to continue with his regular work as a school teacher and coach * * * ”

and established the *5%*physical functional disability. At the formal hearing the petitioner testified and upon his request a report of Dr. Toll, an orthopedic surgeon, was received in evidence which report stated in part:

> “Because of the persistence of symptoms * * * I feel it would be most advisable for him to refrain from athletic activities such as coaching at the present time.”

The petitioner testified:

> “Q. Now, for the school year ’65-’66 is your salary going to be reduced, with the exception of the increment?

> A. I am going to lose $300 coaching.

> Q. That will be all you will lose from Sunnyside as a result of the injury?

> A. That’s right.

> Q. And Dr. Toll indicates that you should not coach ?

> A. That’s right.

> Q. Who is Dr. Toll?

> A. Dr. Toll is an orthopedic surgeon in Tucson, and he has been treating me for this hip injury and my lower back and these shooting pains I have down my leg.

> Q. Has Dr. Treptow indicated that you should not coach?

> A. No, he hasn’t.”

The petitioner had been seen by Dr. Trep-tow for neurological evaluations. His reports are contained in the file. He was also a member of the medical evaluation board which, under date of 11 June 1965, expressed the opinion that the petitioner was able to continue his regular work as both teacher and coach. In relation to his teaching contract for the school year *’65-66,*the petitioner testified that as of the time of the hearing he had signed a contract as a teacher for that school year further testifying:

> “Q. Did you also sign a contract for coaching ?

> A. No, sir.

> Q. Are you going to coach?

> A. No, I am not able to coach. My condition is such that it bothers me to demonstrate things to the children.

> Q. Have you applied for the job?

> A. Yes, sir.

> Q. What were you told ?

> A. I was told the last day of school that I would be hired as track coach again this year.

> Q. Why won’t you be hired?

> A. I don’t feel like I can do it.

> Q. Do I understand that you don’t want to be a track coach?

> A. The doctor doesn’t want me tee coach.

> Q. Even though the school would act favorable upon your request?

> A. I won’t be able to.

> Q. That takes care of coaching. That is worth what ?

> A. $300 as track coach.

> Q. And the same as a football coach?

> A. Yes, sir.”

*399While the Industrial Commission did not utilize the outside employment followed by the petitioner, nor the petitioner’s loss of some phases of outside earnings in computing the presence or absence of loss of earning capacity in relation to the employment covered by the Workmen’s Compensation Act, it was quite possible that the nature of the physical activity incident to certain of his unrelated employment, was considered by the Commission in determining the question as to the petitioner’s physical capacity to continue to coach.

It is our opinion that upon an examination of the present state of the record, there is evidence before the Commission which supports its Findings and Award.

The Award is affirmed.

CAMERON and DONOFRIO, JJ., concur.