Matthews v. Industrial Commission

490 P.2d 29, 15 Ariz. App. 584, 1971 Ariz. App. LEXIS 839
CourtCourt of Appeals of Arizona
DecidedNovember 4, 1971
DocketNo. 1 CA-IC 617
StatusPublished

This text of 490 P.2d 29 (Matthews 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
Matthews v. Industrial Commission, 490 P.2d 29, 15 Ariz. App. 584, 1971 Ariz. App. LEXIS 839 (Ark. Ct. App. 1971).

Opinion

KRUCKER, Chief Judge.

This is a writ of certiorari to review the Industrial Commission’s award denying benefits for petitioner’s claim.

Petitioner, Mrs. Elaine Matthews, allegedly sustained a hernia condition during the course and in the scope of her employment with respondent on 9 July, 1969. On 4 August, 1969, applicant filed a report of injury. By Notice of Claim Status issued 14 August 1969, applicant’s claim was denied. On September 26, 1969, applicant filed a timely request for hearing and following hearings on three different occasions the Commission issued its Findings and Award for Non-Compensable Claim of 10 December 1970, again denying applicant benefits. Applicant then applied for review of the award as provided by A.R.S. §§ 23-942, subsec. C and 23-943, subsecs. A and B. The 10 December 1970 award was reviewed and affirmed on 25 January 1971. From this affirmation applicant made time[585]*585ly application to this court for a writ of certiorari.

In Arizona the burden of proof is upon the claimant to affirmatively show that he is entitled to compensation. Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968); Waller v. Industrial Commission, 99 Ariz. 15, 406 P.2d 197 (1965). Where the evidence before the Commission is in conflict or different inferences may be drawn therefrom, the findings of fact of the Commission will not be disturbed unless its conclusion is wholly unreasonable. Malinski, supra; Books v. Industrial Commission, 92 Ariz. 302, 376 P.2d 769 (1962). The test for appellate review of an Industrial Commission award was set out by the Arizona Supreme Court in Estate of Bedwell, 104 Ariz. 443, 444, 454 P.2d 985, 986 (1969):

“[I]t must appear that the evidence was such that as a matter of law, the award of the commission cannot be sustained because there is no reasonable basis in the evidence upon which the commission could have reached its conclusion.”

The injury complained of here is one clearly defined in A.R.S. § 23-1043:

“All hernias are considered injuries within the provisions of this chapter causing incapacitating conditions or permanent disability, and until otherwise ordered by the commission, the following rules for rating hernias shall govern:
1. Real traumatic hernia is an injury to the abdominal wall of sufficient severity to puncture or tear asunder the wall, and permit the exposure or protrusion of the abdominal viscera or some part thereof. * * *
2. All other hernias * * * are considered to be as shown by medical facts to have either existed from birth, to have been years in formation, or both, and are not compensatory, unless it is proved:
(a) That the immediate cause, which calls attention to the presence of the hernia, was a sudden effort or severe strain or blow received while ill the course of employment.
* Hi * # * *
(d) That the facts in subdivisions (a), (b) and (c) of this paragraph were of such severity that they were noticed by the claimant and communicated immediately to one or more persons.” (Emphasis added) , .f

In light of A.R.S. § 23-1043, the Commission’s denial of benefits could be-adequately supported by the testimony of the two doctors who examined the petitioner. The issue in conflict appears to ;be' the date on which the hernia occurred. The testimony of Dr. Kerriston L. Marsh, i D.O., suggests that petitioner had the pains here complained of (and perhaps the hernia) when he examined her on 23 April 1969, two months before the alleged accident on 9 July 1969:

“Q. When was the first time you [Dr. Marsh] saw her? [Elaine Matthews]
A. April 23rd, 1969.
s¡< ^ %
Q. Did you do a physical on here [sic] at that time?
A. Yes, sir.
Q. With relation to her abdomen, did you find any abnormalities in the area of the abdomen?
A. Weakness in both lower quadrants of the abdominal floors. In part of the history that we took, the patient complained of a knot in the left side for the past five years; no pain without pressure or exertion. The growth had been noted to swell and subside on occasion.
* * * * * *
Q. How about the right side, Doctor ?
A. She stated that on occasion in the lower right quadrant area there would be a pain that would be intermittent. She intimated she had it since childhood; no known trauma recently.
• Q. Was that pain that she had that existed since childhood an intermittent pain?
[586]*586■ A. That is my understanding.'
Q. On this- examination of April 23rd, 1969, in which you found the weakness in the quadrants, were these weaknesses in the- femoral walls?
A.' Yes, sir, this is in the general area I referred to as the inguinal areas.
Q. Were these hernias that you found ?
A. This is a rather difficult question to answer. It would not be considered a frank hernia, but a definite weakness in the abdominal floors, the inguinal area.
' Q. When you say a frank hernia, do you mean they were not hernias by definition; that they had not completed the process of becoming a hernia?
A¡ In other words, when I say frank hernia, it has not yet separated the muscular wall to the point where the abdomen contents and viscera were protruding through the abdominal wall.
‡: * * * s¡<
Q. Did you have occasion to see Mrs. Matthews again?
A. She came in on July 9th, 1969. j Q. What was the occasion for that visit ?
A. The chief complaint was, quote, I have abdominal pain, unquote.
Q. Did you do an examination of her at that time?
A. We rechecked the abdominal walls as previously, and again, the impression was inguinal femoral wall weakness.
Q. Was the extent of the weakness, from your examination, the same as it had been in April, or was it different?
A. I would have to say approximately the -same.
'■*. ' '' * * * *
Q.

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Related

Bedwell v. Industrial Commission
454 P.2d 985 (Arizona Supreme Court, 1969)
Waller v. Industrial Commission
406 P.2d 197 (Arizona Supreme Court, 1965)
Books v. Industrial Commission
376 P.2d 769 (Arizona Supreme Court, 1962)
Malinski v. Industrial Commission
439 P.2d 485 (Arizona Supreme Court, 1968)

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Bluebook (online)
490 P.2d 29, 15 Ariz. App. 584, 1971 Ariz. App. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-industrial-commission-arizctapp-1971.