McCarty v. Industrial Commission

432 P.2d 478, 6 Ariz. App. 334, 1967 Ariz. App. LEXIS 576
CourtCourt of Appeals of Arizona
DecidedOctober 16, 1967
DocketNo. 1 CA-IC 149
StatusPublished
Cited by1 cases

This text of 432 P.2d 478 (McCarty 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
McCarty v. Industrial Commission, 432 P.2d 478, 6 Ariz. App. 334, 1967 Ariz. App. LEXIS 576 (Ark. Ct. App. 1967).

Opinion

CAMERON, Chief Judge.

This is a writ of certiorari to review a finding and award of the Industrial Commission of Arizona.

We are called upon to determine whether the finding of the Industrial Commission that the petitioner’s injury should be compensated as a scheduled rather than an unscheduled disability is reasonably supported by the evidence.

Petitioner was using a cutting torch to burn holes in a steel form when a piece of slag or molten steel, tar, and concrete flew back and rolled into his ear burning a hole in petitioner’s eardrum. On 16 February 1962 the Industrial Commission issued its findings and award for scheduled permanent disability finding that said injury caused a permanent partial disability equal to a 12% loss of hearing of the right ear. On 14 May 1963 petitioner filed an application for readjustment or reopening of 'the claim. After a finding and award denying reopening, petitioner employed counsel. - The award was protested and application for rehearing filed. A hearing [335]*335was held 5 May 1964 at which time V. A. Dunham, Jr., M.D., testified as follows:

“Q Was there an indication then from this process that there was actually fluid in the ear?
“A Although I could not see fluid in the ear by looking at the eardrum, we know that fluid may be present, and there is a distinct sound that one hears during catheterization. I did not mention it previously, but at the time of the catheterization we used what is known as a Toynbee tube; this is a rubber tube with a device on each end which fits into the ear canal. One is placed in the patient’s ear that is being catheterized, and the other is in the doctor’s ear. He listens to the sound of the air as it passes through the eustachian tube into the ear. If fluid is present, it is detectable. The sound made is difficult to describe unless you listen to it yourself. It has a squeaking quality which is not present when you catheterize the eustachian tube where the air is free of fluid.
"Q Doctor, you mentioned Mr. McCarty had mentioned pulsation in the ear and ringing. Was there anything that you observed or found that accounted for this allegation of pulsation and ringing in the ears ?
■“A Ringing in the ear and pulsation in the ear both may accompany the condition of fluid in the ear, yes.
■“Q Were your findings compatible with the complaint by the applicant of such pulsations and ringing?
"A Yes, they were.
"Q Doctor, would this condition such as you found have any effect upon a man’s balance, his sense of balance . in walking in high places ?
■“A Yes. Dizziness may also accompany the condition of fluid in the ear, and also there is usually hearing loss. On occasion there may be pain.
“Q Doctor, from what you were told of the mechanism of this injury and your actual findings, would you have an opinion as to whether there was a possibility whether or not the original injury was the cause, direct or indirect, of this condition you found?
“A Well, it was my feeling, after checking the patient, that although the primary condition was that of an allergy and subsequent eustachian tube blocking and fluid in the ear, that based on the history and my physical findings, it was my feeling that the fact that the right ear was involved with these symptoms and the left ear remained relatively free of these symptoms that the original injury had to play a contributing part in the persistence of symptoms on that side.
* * * * * *
“A In reaching my opinion of Mr. McCarty, I stated previously that I felt that from the allergic rhinitis pressent (sic) and the fluid in the ear resulting from the swelling in the nose from the allergic rhinitis, that it was my feeling that this condition caused a symptomatology in the right ear as opposed to no symptoms in the left side. It would have to be correlative with the history, it would have to be attributable to the injury, because in correlating this with the physical findings and history, his symptomatology had been related to the right ear, which had been the injured ear, and in the allergic rhinitis the entire nasal membrane is involved, so we must assume that it would be just as likely to block up the left eustachian tube as the right. With Lhe findings being in the ear that had been involved, we must assume then that with the persistence of symptoms following the injury that it had to contribute to his symptoms.”

[336]*336On 27 August 1964 the Commission issued its decision upon rehearing, and on additional findings and award for scheduled permanent disability they found that the petitioner suffered a permanent partial disability equal to a 17% loss of hearing in the right ear as opposed to the 12% previously found. Petitioner filed a new petition for rehearing claiming that the findings were not based upon evidence, and that there was a failure to find a general disability because of dizziness and loss of balance. The hearing was held 6 January 1965. The petitioner testified and the following transpired:

“Q Now at the last hearing you referred in your testimony to working in high places, and the Hearing Officer at the last hearing in a report to the Commission indicated that he was not sure whether you were referring to working at high altitudes or just what you ..did mean. Now, what . do you mean by not wanting to work in high places?
“A I mean up on the scaffolds where the footing isn’t sure because of the danger of falling, not high altitudes like Flagstaff- or some place like ' that, not where there is solid ground.
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“Q You feel that you would not be able to work in heights ?
“A In high places I would definitely not want to work, it would depend on how hungry my children were; if they were hungry enough I would be desperate enough to try it even though I would risk my life and limb.
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“Q Do I understand your problem of working at heights is because of the dizziness?
“A Yes, the wooziness, the dizziness, not because of the hearing.”

The Referee’s Report recommended that the petitioner’s ‘ claim be denied and stated:

“Headaches or dizziness and tiredness are not additional injuries within the meaning of the Workmen’s Compensation Act so as to qualify this as an unscheduled disability. They are merely symptoms,— not injuries.”

On 9 March 1965 the Commission issued its decision upon rehearing affirming the previous decision and award. The matter was then brought to this Court by writ of certiorari, and on 18 November 1965 by stipulation was remanded back to the Industrial Commission for further action. After consultation, a hearing was held 6 October 1966. Dr. Maresca testified:

“Q Doctor, then as I take it, there is nothing in your tests that actually rules out the possibility of a tinnitus, the pulsing?
“A No, there is nothing. No, sir, there is no way.
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Bluebook (online)
432 P.2d 478, 6 Ariz. App. 334, 1967 Ariz. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarty-v-industrial-commission-arizctapp-1967.