Lockler v. Industrial Commission

512 P.2d 27, 20 Ariz. App. 264, 1973 Ariz. App. LEXIS 698
CourtCourt of Appeals of Arizona
DecidedJuly 19, 1973
DocketNo. 1 CA-IC 739
StatusPublished
Cited by2 cases

This text of 512 P.2d 27 (Lockler 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
Lockler v. Industrial Commission, 512 P.2d 27, 20 Ariz. App. 264, 1973 Ariz. App. LEXIS 698 (Ark. Ct. App. 1973).

Opinion

JACOBSON, Chief Judge, Division 1.

This review of an award of the Industrial Commission denying benefits raises the question of whether the injured workman sustained his burden of proving that his cerebral stroke was causally related to or precipitated by his employment.

Petitioner, Ed Otis Lockler, was employed by respondent, Producers Minerals Corporation, as a night watchman at its mining operation located near Safford, Arizona. His duties as night watchman consisted merely in checking vehicles that entered or left his employer’s premises and obtaining bills of lading for delivery. Several days prior to August 13, 1971, the employer, in order to better regulate the flow of traffic to and from its premises, installed a gate at the entrance to its mining properties. This gate was constructed of a pipe frame covered with a wire mesh and weighed between 300 and 400 pounds. The gate rested on two large rollers which carried its weight and was held in a vertical upright position by two additional rollers located on the top of the supporting frame. These rollers were stationary and the gate slid back and forth over the rollers in opening and closing. The effort required [265]*265to open and close this gate was in dispute and this dispute relates directly to the causation of the petitioner's condition.

For some time prior to August 13, 1971, petitioner had suffered from dizziness and headaches and for three days prior to the incident complained of a tingling sensation in his arm. Petitioner was 59 years old at this time. He had suffered a previous heart attack and had undergone a colon operation.

On August 13, 1971, petitioner reported to work at 6 p. m. complaining of dizziness and a headache. His work was apparently uneventful until approximately 11 p. m. that evening. At the hearing of this matter, petitioner testified that at approximately this time he was ordered to start opening and closing the newly-installed gate. He further testified that this was the first time he was called upon to perform this duty, the gate was heavy, required lifting to start its rolling, and that on the first occasion he tried closing the gate he noticed a tingling sensation in his arm and leg. His testimony was further that he continued to feel worse, felt dizzy, blacked out, and finally, after opening and closing the gate five or six times, he was compelled to lie down at approximately midnight. He performed no further work that night, was taken to a doctor the following morning, and was sent to a hospital in Tucson where his condition was diagnosed as a stroke (deficiency of blood supply to the brain.)

The petitioner’s initial report described the accident as follows:

“On July 12th, 1970 [sic], I called Jack Robinson, mine superintendent, and said I was too ill to go to work. Was told there was no one to take my place. Went to work at 6 p. m. Went to work staggering and falling. Unable to get anyone to take me to a doctor until July 14th [sic] at 9 a. m.”

The first indication that petitioner causally related the exertion in the opening and closing of the gate to his stroke came at the first hearing in this matter. Other workmen of the employer testified that the gate was newly installed, was in perfect working order, required no great exertion to operate it and this could be done with one hand.

Two doctors testified in this matter: Dr. J. Scott Tyler, testifying for the petitioner, and Dr. Richard R. Van Epps, testifying for the respondent insurance carrier.

Dr. Tyler, a neurologist, based upon an examination of petitioner on June 16, 1971 (approximately two months prior to the stroke) and an examination of other medical reports and files, testified:

“Q. Doctor, would you have an opinion with reasonable medical certainty and probability as to whether the incident or the incidents of the opening and closing of the gate for the first time the six times between 11:00 o’clock and midnight by Mr. Lockler — this being the first time he had been required to do this by the testimony — did or did not have a precipitating or causative effect upon the stroke occurring at the hour that it did?
“A. I do feel within a reasonable medical probability and certainty that the stroke was precipitated at that time by the labor which for him was unusual.”

Dr. Tyler was explicit, however, in his qualifications of this opinion:

“Q. Would the main predicate of your opinion be that you considered the activity with respect to the gate as being unusual; is that the main part of your opinion ?
“A. Yes, sir, this is a necessary hypothesis to my opinion.
“Q. In other words, if we take away the exertion being unusual then your opinion would be otherwise; is that correct?
“A. That is correct. I would like to draw an analogy on the heart which you have alluded to.
“Q. I just want to find the main predicate of your opinion. You assumed moving of the gate was unusual, and if it were not unusual, you would say it [266]*266would have no cause and effect relationship ; is that right ?
“A. That is right.”

In elaborating upon this issue of “unusualness” the doctor testified:

“Q. Doctor, did you assume, then, that the unusualness is being that he had to pick up the gate to get it rolling; is that what you assumed ?
“A. Not necessarily. I cannot say how many foot pounds of energy that would be required to be exerted before I would expect him to do this. I would specify that anything that would increase his pulse rate by more than about 15 beats per minute or something in that nature would be enough to perhaps cause a stroke.
“Q. Whether this gate, in fact did do that, you would have no way of knowing ; is that correct ?
“A. I have no way of knowing.”

Dr. Van Epps, also a neurologist, based solely upon review of the medical reports and files, testified:

“Q. Doctor, based upon reasonable medical probability, can you state your opinion as to whether or not that any of the events that I have described to you, as far as the employment is concerned, in any way caused or produced or accelerated the stroke that occurred to Mr. Lockler? First, do you have an opinion?
“A. Yes.
“Q. What is that ?
“A. If things are as such as you stated, I would think that it would have happened anyway. Let’s put it that way.
“Q. Do you think any of the events of the employment produced or accelerated this man’s condition that brought on the stroke ?
“A. No.”

The hypothetical question upon which Dr. Van Epps based his opinion, included the assumption that the exertion required to move the gate was “not unusual.” This was also elaborated upon:

“Q. In other words, Doctor, can small exertion or little exertion cause the condition as found in Mr. Lockler ?
“A. I don’t see why it would. It really don’t make sense to me why it would.
“Q.

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

Related

In Re Mh Xxxx-Xxxxxx
205 P.3d 1124 (Court of Appeals of Arizona, 2009)
In re MH 2008-000438
205 P.3d 1124 (Court of Appeals of Arizona, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
512 P.2d 27, 20 Ariz. App. 264, 1973 Ariz. App. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lockler-v-industrial-commission-arizctapp-1973.