Langbell v. Industrial Commission

529 P.2d 227, 111 Ariz. 328, 1974 Ariz. LEXIS 430
CourtArizona Supreme Court
DecidedDecember 9, 1974
Docket11658-PR
StatusPublished
Cited by12 cases

This text of 529 P.2d 227 (Langbell v. Industrial Commission) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Langbell v. Industrial Commission, 529 P.2d 227, 111 Ariz. 328, 1974 Ariz. LEXIS 430 (Ark. 1974).

Opinions

CAMERON, Vice Chief Justice.

We granted a petition for review of a memorandum decision of the Court of Appeals, Division One, Department A, which affirmed an award of the Industrial Commission of Arizona, finding that the claimant had no permanent physical disability or loss of function for work.

We must answer the following questions :

1. Does the claimant have a present physical impairment or loss of function as the result of the industrial injury, and
2. If so, is this a scheduled or unscheduled disability ?

The facts necessary for a-determination of this matter on appeal are as follows. Arnie Langbell was employed for forty years as a carpenter and a construction supervisor. In 1969 while employed by the State Highway Department, Langbell was struck in the forehead by a timber which caused the retina of his left eye to detach. Langbell was treated by two ophthalmologists and underwent three major eye operations in an effort to remedy the detachment. After the operations and treatment which reattached the retina, the. workman’s condition stabilized such that there was at most only a slight loss of vision necessitating a prescription for eyeglasses. His doctors, however, forbade him from returning to heavy construction work because another facial blow or severe jarring could very likely cause the retina in the left eye to again detach.

At the hearing before the Industrial Commission hearing officer, two ophthalmologists, Sheldon Davidson, M.D. and Louis Rosenbaum, M.D., testified. Dr. Davidson testified on cross-examination:

“BY MR. SKELTON:
“Q Doctor, you mentioned that there was a possibility that a further re-detachment might occur if he were to go back to this heavy work that he is accustomed to doing during his life. Do you have any percentage figure or can you predict with any degree of reliability at all whether it would not ?
“A No, I can’t predict.
[330]*330“Q Isn’t it true that a lot of people with similar conditions go back to strenuous heavy work and do not suffer further redetachments ?
“A I don’t think anybody has figures on it, but I really don’t agree in that respect. I think it is a mistake to subject yourself to sudden heavy lifting.
“Q This is in the nature of preventative medicine as opposed to any therapeutic medicine, Doctor?
“A Yes.
“Q Doctor, again hypothetically if Mr. Langbell were to go back to heavy work and suffer a redetachment and if he were to have the worst possible surgical result from a redetachment, his disability at that point would be the loss of sight in the left eye, is that correct ?
“A Yes.”

And Dr. Rosenbaum testified:

“Q In the course of your treating Mr. Langbell, Doctor, did you ever make any recommendations to him as to whether he could resume his normal employment activities ?
“A At the time of surgery I told him that he could not return to heavy construction work.
“Q At the time of your last examination on May 9, 1972, Doctor, were those recommendations still the same?
"A. Yes.”

And:

“Q If Mr. Langbell should suffer another detachment in his left eye or his right eye, what would the consequences of that condition be in terms of Mr. Langbell ? What would the prognosis be ?
“A It would depend on how much of the retina was detached, where it was detached, how long it had been detached, alterations within the vitreous, surgical complications both immediate and long term. There are changes that occur within an eye after satisfactory surgery, causes of which we do not know, but which can cause traumatic loss of vision that is irreversible. The more frequently one subjects an eye to procedures, the more likely one is to have one of these unfortunate complications occur which are beyond the control of the surgeon.”

It was admitted by all concerned that there was no loss of vision of the eye. Because of the doctors’ advice, however, the claimant was unable to find work in positions such as work foreman or supervisor even though it is agreed that the claimant made a diligent effort to find work. Claimant testified that a foreman or supervisor is expected to “pitch in” when lifting is required and that “they are not just going to pay you to stand around and look around.”

The Fund found that the claimant had a 15% loss of vision in the left eye entitling him to scheduled permanent disability award in the amount of $337.50 a month for three and three-fourths months.

The hearing officer however found no loss of vision and further found that:

“22. Although in the instant case the applicant is more susceptible to future injury, he has no present physical or mental impairment or loss of function for work which must underlie an award for permanent disability: * * * ”

Claimant filed a request for review and the Commission affirmed the award of the hearing officer. The Court of Appeals on 2 April 1974, affirmed the award of the Commission and we granted claimant’s petition for review.

WAS CLAIMANT DISABLED?

It has been held that before a claimant can receive an award for loss of earning capacity, there must be a previous finding of general physical functional disability. State Compensation Fund v. Garcia, 12 Ariz.App. 9, 467 P.2d 84 (1970); Sims v. Industrial Commission, 10 Ariz. [331]*331App. 574, 460 P.2d 1003 (1969); Rutt v. Industrial Commission, 17 Ariz.App. 142, 495 P.2d 1349 (1972).

It has also been held that the Commission is “not required to prospectively rule on speculative future disability that may or may not actually result, and which, if it does result may or may not prove to have some causal relationship to petitioner’s industrial injury.” Spacone v. Industrial Commission, 14 Ariz.App. 351, 352, 483 P.2d 583, 584 (1971).

It does not follow, however, that a claimant must unreasonably risk further injury before he is entitled to compensation:

“ * * * It is not necessary for workmen to put themselves in a position to incur further physical damage in order to receive the benefits of workmen’s compensation.” Garrard v. Industrial Commission, 6 Ariz.App. 373, 376, 432 P.2d 921, 924 (1967).

In the instant case the claimant was precluded from gainful employment as a direct result of the industrially related injury to the left eye. After 40 years in carpentry and construction, he is no longer employable.

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Langbell v. Industrial Commission
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Bluebook (online)
529 P.2d 227, 111 Ariz. 328, 1974 Ariz. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/langbell-v-industrial-commission-ariz-1974.