Montgomery Ward & Co. v. Industrial Commission

514 P.2d 758, 20 Ariz. App. 587, 1973 Ariz. App. LEXIS 793
CourtCourt of Appeals of Arizona
DecidedOctober 16, 1973
DocketNo. 1 CA-IC 823
StatusPublished
Cited by1 cases

This text of 514 P.2d 758 (Montgomery Ward & 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
Montgomery Ward & Co. v. Industrial Commission, 514 P.2d 758, 20 Ariz. App. 587, 1973 Ariz. App. LEXIS 793 (Ark. Ct. App. 1973).

Opinion

OPINION

JACOBSON, Chief Judge, of Division 1.

This second review of an Industrial Commission award requires a determination of whether the factual deficiencies noted in our previous opinion 1 have been cured by a hearing held subsequent to the issuance of our mandate.

The facts underlying the employment of respondent Mary V. Fuller and her physical infirmities have been set forth in our previous opinion in this matter and need not be reiterated in extensive detail here. Suffice it to say that Mrs. Fuller was employed by petitioner, Montgomery Ward & Co., Inc. for approximately eight months as a part-time switchboard operator, commencing in June, 1965. At that time she already suffered from rheumatoid arthritis. There is no contention that this condition was caused directly or indirectly by her employment.

As we noted in our previous opinion:

“On the other hand, while both Dr. Farness and Dr. Thompson testified that in their opinion Mrs. Fuller’s work activities did aggravate her arthritis by increasing and prolonging the pain and swelling in her arthritic afflicted joints, there is no testimony from which it can be inferred that the work activity actually caused a disability which would not [588]*588have existed separate and apart from the íwork activities involved.” Montgomery Ward Co. v. Industrial Commission, supra note 1, at 23, 480 P.2d at 360. (Emphasis added; footnote omitted.)

As a result of this evidentiary deficiency2 this court set aside the award finding that Mrs. Fuller suffered from a disability resulting from an injury arising out of the course of her employment. Following the issuance of our mandate the Commission issued an award denying benefits to Mrs. Fuller. This award was timely protested by a request for hearing which was held on December 14, 1971. At this hearing the only medical evidence presented was by Dr. Harry E. Thompson, who had also testified at hearings held prior to our first opinion. Following the hearing, the hearing officer entered his opinion finding that Mrs. Fuller had suffered a compensable injury arising out of and in the course of her employment and awarded benefits. This opinion was affirmed by the Commission and petitioner again sought review in this court by way of writ of certiorari.

It is the claimant’s position, using our prior opinion as a guide in examination, that Dr. Thompson’s additional testimony has cured the prior evidentiary deficiency. Conversely, petitioner contends that the additional medical evidence adduced on this point is so equivocal and speculative that it did not cure the deficiency. The parties’ conflicting contentions require a review of Dr. Thompson’s testimony, it being conceded by both parties that the resolution of this question is purely within the realm of medical evidence. Jones v. Industrial Commission, 81 Ariz. 352, 306 P.2d 277 (1957).

Dr. Thompson on one occasion testified:

“Q. Now, one final question. The facts, as we now [sic] them in this case, is [sic] that although Mrs. Fuller may have had arthritis prior to her employment with Montgomery Ward, that certainly the condition did not prevent her from working prior to going to work for Montgomery Ward. Those being the facts, would you have an opinion based upon a reasonable medical probability as to whether or not the aggravation of the arthritis by her employment caused or contributed to her disability ?
“A. I think the answer is that it did.”

It would appear that this testimony is definite enough. However, the doctor also testified:

“Q. Okay. Would you have an opinion, Doctor, based upon a reasonable medical probability as to whether or not the work that she was engaged in, the work activity actually caused a disability which would not have existed or which she would not have had at that particular time were it not for the work ?
“A. You can’t really answer that question one way or the other because these arthritic cases are very much different. As a general rule with early rheumatoid arthritis starting we try to stop their physical activities, whether it is housework or physical work of any sort. We do that primarily for the reason that many of these cases quiet down with simple rest and aspirin. We have no idea which patient will go ahead and get worse even if we do that, and to start some other therapy. (Emphasis added.)
“Q. Well, perhaps I didn’t make my question clear. My question is whether or not her working under the conditions that have been described for you, brought on a disability which would not have occurred at that particular point in time had she not been engaged in this work?
“A. I have to qualify that answer because it could be a yes or no, and her physical disability and her arthritis was [sic] definitely aggravated by work, but •whether her contimiing the work may [589]*589have prolonged this or made it worse is pretty hard to say. I think under the circumstances that I would have a feeling, and this would be a personal opinion, that it may have in her case, because when she stopped work and was treated symptomatically, why, the disease continued.” (Emphasis added.)

Again Dr. Thompson testified:

“Q. Would you have an opinion, Doctor, again based upon a reasonable medical probability, as to whether or not the employment and the conditions thereof accelerated the onset of symptoms that more than likely would have eventually occurred ?
“A. Yes.
“Q. What is your opinion ?
“A. My opinion is yes, I think so.
“Q. And why do you say that, Doctor?
“A. Pardon ?
“Q. What is the basis for that opinion?
“A. Well, in reference to my previous answer is that we have had a chance to observe her and she was getting worse with her work and she happened to fall into this class of people who, even if she stopped work, she continued to get worse. So, I think it is definitely within the realm of possibility, but we have no way of picking these people out of thin air and saying which one is going to get better if they stop working and which ones won’t.” (Emphasis added.)
Dr. Thompson also stated:
“Q. Okay. Doctor, do you have an opinion as to whether or not this aggravation was temporary or permanent?
“A. I think in view of Mrs. Fuller’s subsequent history the aggravation was definitely contributing to the continuation of her arthritis.
“Q. You don’t think that any effects of that aggravation subsided with the passage of time and that the rest was the natural progression of her disease? Is that what you are telling us ?
“A. No. You are putting my words differently. Would you rephrase that again ?
“Q. Well, would the reporter read the question back.
(At this time the last question propounded by Mr.

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Related

Montgomery Ward & Co. v. Industrial Commission
558 P.2d 960 (Court of Appeals of Arizona, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
514 P.2d 758, 20 Ariz. App. 587, 1973 Ariz. App. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-ward-co-v-industrial-commission-arizctapp-1973.