H. P. Foley Electric Co. v. Industrial Commission

501 P.2d 960, 18 Ariz. App. 332, 1972 Ariz. App. LEXIS 858
CourtCourt of Appeals of Arizona
DecidedOctober 17, 1972
DocketNo. 1 CA-IC 586
StatusPublished

This text of 501 P.2d 960 (H. P. Foley Electric Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H. P. Foley Electric Co. v. Industrial Commission, 501 P.2d 960, 18 Ariz. App. 332, 1972 Ariz. App. LEXIS 858 (Ark. Ct. App. 1972).

Opinion

EUBANK, Judge.

Petitioners seek review by writ of certiorari of the lawfulness of an award of The Industrial Commission finding respondent Lester L. Gill’s claim compensable as resulting from an injury by accident arising out of and in the course of his employment.

The questions raised by petitioners are: (1) whether there was sufficient evidence to support the award of the Commission, and (2) whether there was an abuse of discretion on the part of the hearing officer when he denied a motion to continue the hearing for the purpose of securing testimony from missing material witnesses.

On November 11, 1969, while employed as an electrician by petitioner H. P. Foley Electric Company, on the premises of the [333]*333Western Electric Company in Phoenix, respondent-claimant fell on a concrete walkway, sustaining injuries to his head which, he claimed, caused the onset of a series of epileptic seizures and necessitated his hospitalization. Respondent’s application for benefits was denied by petitioner Liberty Mutual and a formal hearing was held on July 28, 1970. Following the hearing, the hearing officer issued his Decision Upon Hearing and Findings and Award for Compensable Claim in favor of respondent which was later affirmed by the Commission.

Petitioners contend that the following Finding of the hearing officer is erroneous and not supported by the evidence:

“4. . . . [T]hat the medical testimony and medical records in evidence clearly establish that applicant sustained a series of grand mal epileptic convulsions or seizures on November 11, 1969; that there is no substantial evidence, however, that said seizures occurred prior to applicant’s admission to the emergency room at Maryvale Community Hospital; that the testimony of applicant, corroborated by other disinterested parties, clearly establishes that the applicant fell upon a cement floor and that said floor was wet and slippery at the time, which said condition caused the applicant to slip and fall. . . . ”

The record is clear that prior to his November 11th fall, respondent had never experienced epileptic episodes. Immediately after the fall, and later at the hospital, respondent was observed undergoing several grand mal seizures. The Commission was thus faced with two equally reasonable inferences which could be drawn from the evidence: (1) respondent suddenly experienced the first epileptic seizure of his life, at age 46, which caused him to fall and strike his head; (2) or the blow to his head, following the fall, precipitated the epileptic attack.

Since injuries resulting from idiopathic falls, although occurring during the course of employment, in and of themselves are not compensable as arising out of the course of employment, the main factual issue before the Commission was whether respondent was or was not experiencing a seizure at the time that he fell at Western Electric. See Valerio v. Industrial Commission, 85 Ariz. 189, 334 P.2d 768 (1959); PMC Powdered Metals Corp. v. Industrial Commission, 15 Ariz.App. 460, 489 P.2d 718 (1971).

One witness, Mrs. Belan Diaz, testified and vividly described respondent’s seizure before his fall. Respondent denied this, and claimed that he slipped and fell in a puddle of water. Respondent’s testimony was corroborated by a second witness whose view was partially obscured but who indicated that he saw water on the walkway before he saw respondent slip and fall. A third witness who arrived on the scene after the accident said that he saw a large puddle of water on the floor at approximately the place where respondent fell. In addition, a witness testified that respondent’s shirt and the upper part of his trousers were wet when he arrived at the hospital. Petitioners, on the other hand, contend that any wetness was caused by the partially filled soft drink respondent spilled when he fell.

The only direct medical testimony elicited at the hearing was given by Dr. John Sanders, a neurosurgical resident at Barrows Neurological Institute, who was the admitting and one of the attending physicians. Dr. Sanders, testifying primarily from the medical records, indicated that he could not give an opinion as to the cause of the seizures. He said that he believed the initial seizure preceded the fall, and based this conclusion on the reports of a witness that respondent “cried out” before he fell, because “this is a classical finding in a grand mal seizure.” The doctor added, however, that “it’s important to know . . what [the witness] means by 'crying out’ ”. On cross-examination the doctor testified as follows:

“Q. Just so that we understand what you are saying, your conclusion that this [334]*334man had a seizure and then fell is based upon your having been told by someone that he had been walking along, had cried out and had simply fallen over?
A. That’s true.
Q. You were not given any factual background that this man had slipped and had fallen and had hit his head?
A. I had given the background that he had fallen. I had been given the knowledge that he had fallen after crying out. I knew he had fallen.
Q. Had you been given any facts that he had slipped on some wet flooring and had fallen and had hit his head and was then observed to have the convulsive type action?
A. No, I did not receive that kind of information.
Q. If you had received that kind of information, and assuming that 'to be true, then you would not conclude that the seizure had caused the fall, would you?
A. That’s true, that is obvious.”

Respondent testified at the hearing that he “let out a beller” as he slipped and fell. Mrs. Diaz, who was about five feet from respondent when he fell, testified that she did not hear him cry out, but that he might have without her hearing it since the area was very noisy. No other testimony concerning this aspect of the case is found in the record.

The doctor also noted that there was some evidence of a basal fracture of the skull, and some evidence of an aneurysm (enlarged or dilated blood vessel) which might or might not have been caused from respondent’s fall.

In regard to the respondent encountering an epileptic seizure prior to the fall, Dr. Sanders testified on cross-examination that it was unusual for a person to live until he is in his forties, such as respondent had done and then have his first seizure; that idiopathic epilepsy is most generally first noted in early childhood; and that seizures could be caused by a blow to the head. He had previously testified to finding a “slight bruise on the right frontal temporal region” of the respondent’s head which in his opinion did not cause the seizure.

On the basis of the foregoing, petitioners contend that there is insufficient competent testimony on which to base the Commission’s award. We disagree. The facts of the case at bar are closely aligned with the situation in Graver Tank & Manufacturing Co. v. Industrial Commission, 96 Ariz. 34, 391 P.2d 589

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Raymer v. Industrial Commission
501 P.2d 25 (Court of Appeals of Arizona, 1972)
PMC Powdered Metals Corp. v. Industrial Commission
489 P.2d 718 (Court of Appeals of Arizona, 1971)
Graver Tank & Manufacturing Co v. Industrial Commission
391 P.2d 589 (Arizona Supreme Court, 1964)
Southwest Forest Industries, Inc. v. Industrial Commission
392 P.2d 506 (Arizona Supreme Court, 1964)
Valerio v. Industrial Commission
334 P.2d 768 (Arizona Supreme Court, 1959)
Hartford Accident & Indemnity Co. v. Industrial Commission
487 P.2d 23 (Court of Appeals of Arizona, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
501 P.2d 960, 18 Ariz. App. 332, 1972 Ariz. App. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-p-foley-electric-co-v-industrial-commission-arizctapp-1972.