Perry v. Industrial Commission

539 P.2d 178, 24 Ariz. App. 374, 1975 Ariz. App. LEXIS 725
CourtCourt of Appeals of Arizona
DecidedAugust 26, 1975
DocketNo. 1 CA-IC 1191
StatusPublished
Cited by2 cases

This text of 539 P.2d 178 (Perry 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
Perry v. Industrial Commission, 539 P.2d 178, 24 Ariz. App. 374, 1975 Ariz. App. LEXIS 725 (Ark. Ct. App. 1975).

Opinions

OPINION

STEVENS, Judge.

John B. Perry (petitioner) sustained an industrially related low back injury. There is no issue as to that fact. After a hearing, an award was entered holding that the petitioner’s condition became medically stationary with an absence of any resulting physical or mental permanent disability. In a timely manner the case was presented to this Court.

This case is unusual in that the petitioner was the only person to testify at the formal hearing, all of the medical evidence being presented by depositions.

The petitioner was seen by R. P. Brow-er, M.D., of San Manuel, Arizona; Jacob B. Redekop, M.D., an orthopedic surgeon in Tucson, Arizona; by John F. Mc-Cluskey, Jr., M.D., an orthopedic surgeon-of Houston, Texas; by Lynn L. Pearson, M.D., an orthopedic surgeon of Webster, Texas; and by A. E. Minyard, M.D., an orthopedic surgeon of Galveston, Texas. In addition, he was seen by medical doctors whose full names do not appear in the file and who did not testify: .namely, Dr. Rosenblad; Dr. Freeman; Dr. Lockhart and possibly others. Dr. Rosenblad is a general practitioner and Drs. Freeman and Lockhart are orthopedic surgeons.

The petitioner was injured on 2 February 1973 at approximately 8:15 a. m. while working in San Manuel. The exact distance and nature of the fall causing his low back injury are not too clear in the record. Dr. Brower saw the petitioner at approximately 9:30 a. m. that day. The petitioner was hospitalized in Tucson that afternoon under the care of Dr. Redekop. He was not released from the hospital until 12 February. In the meantime, Dr. Redekop secured a myelogram which was negative. During the course of the petitioner’s testimony his counsel made reference to Dr. Redekop’s report of 12 February “which is in evidence” but the report was not forwarded to this Court as a part of the file. The petitioner testified, without contradiction, that when he was released from the hospital in Tucson, Dr. Redekop placed no restrictions on his work activity. Dr. Redekop apparently advised the petitioner that he saw no reason why the petitioner should not return to his [376]*376home in Texas seeking medical aid there if needed. The petitioner’s testimony was, basically, a historical recitation of post injury events. It appears entirely credible and we find no adverse comments relative thereto in the hearing officer’s decision and award.

Before going forward with this opinion we desire to state that we recognize the well established rule that on the judicial review of an Industrial Commission award, the Court will sustain the award if there is credible evidence to support it. This rule arises where the hearing officer hears live testimony and observes the witnesses. Here the key evidence is the medical evidence, all of which was presented by deposition. With due respect to the duties and responsibilities of the hearing officer, this Court has the same ability to review and evaluate the deposition evidence as does the hearing officer and if this Court concludes that the weight thereof is contrary to the conclusions of the hearing officer, this Court will not hesitate to disagree. In Broadus v. The Industrial Commission of Arizona, 18 Ariz. App. 429, 503 P.2d 387 (1972) (review denied) we stated:

“The medical evidence is documentary only. We can weigh this evidence as well as could the hearing officer. We are not here faced with the hearing officer’s evaluation of live but conflicting medical evidence.” 18 Ariz.App. at 435, 503 P.2d 393.

After the petitioner’s release from his 10-day hospital stay in Tucson, he returned to his home in Texas and came under the care of Dr. Rosenblad. Although Dr. McCluskey does not recall just how the petitioner came to him, it appears that the petitioner was referred to him by Dr. Rosenblad.

Dr. McCluskey first saw the petitioner on 12 March 1973. He had the benefit of the report of the Tucson myelogram. On 15 March an electromyogram was performed which was normal. Dr. McCluskey hospitalized the petitioner in the Clear Lake Hospital from 20 March to 26 March 1973 for conservative treatment and observation as an in-patient. Just prior to this hospitalization the petitioner sustained the “gear shifting incident.” He could not shift his car and to free the gear shifting mechanism he was required to open the car hood and to lean in. In so doing he experienced low back discomfort. The petitioner testified that no greater discomfort was experienced from this incident than from numerous other post injury body movements. Prior to the petitioner’s release from Dr. McCluskey’s hospitalization he was seen by Dr. Pearson at the request of Dr. McCluskey’s partner, Dr. Freeman. He was released from the hospital with instructions to return to his normal work, that of a boilermaker, which is heavy physical labor.

The petitioner returned to Dr. Rosenblad. The exact dates and circumstances of the petitioner’s next hospitalization at the Galveston General Hospital are not clear. In any event, while at the Galveston General Hospital and on or about 5 April he was seen by Dr. Lockhart with whom Dr. Pearson was associated and by Dr. Pearson.

Thereafter, on the suggestion of the petitioner’s Texas attorney, Charles Britt of Alvin, Texas, the petitioner saw Dr. Min-yard. The first consultation was on 24 April 1973. Dr. Minyard hospitalized the petitioner from 1 to 12 May and from 17 to 25 May. During this period of time there was an additional myelogram which was negative. Here, as with prior hospitalizations, the petitioner’s pain reduced during extended bed rest and recurred upon leaving the bed. This was of significance to Dr. Minyard. Dr. Minyard rendered his report to Mr. Britt, the report bearing date of 2 July. We quote a portion of Dr. Minyard’s report:

“This man has obvious clinical findings of a herniated lumbar disc at L4/5, therefore, I admitted him into the hospital and did a myelogram of the lumbar [377]*377and cervical regions which showed no protruded disc.
* * * * * * “Although the myelogram in this case was negative initially, I feel that this man has an obvious clinical disc and, as such, will require exploration, removal of the disc, and in all medical probability, surgical fusion of his lumbosacral spine.”

The petitioner, being in need of income, returned to Arizona going to Globe on about 1 September 1973. There, for approximately three weeks, he attempted to work. The pain was such that he returned to Dr. Minyard when, according to the petitioner’s testimony, “I asked him to do something.” Dr. Minyard operated on 3 October in the John Sealy Hospital.

In relation to the surgery we quote portions of Dr. Minyard’s deposition testimony:

“A I prepared him for surgery. And on October the 3rd I did an L-4 - L-5 - S-l laminectomy decompression, and I did an L-4 - 1-5 - S-l lumbar fusion. “O All right. Now, Doctor, I want you to describe for us, if you will, what you found on surgery ?
“A The thing that — in exposing him— of course, he had lipping of the lamina which isn’t always common, but is one of the usual findings.
In other words, to remove — I had to remove two laminae to get down into the canal. I found that this man had a much narrower canal than I had anticipated.

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Related

Perry v. Industrial Commission
542 P.2d 1096 (Arizona Supreme Court, 1975)

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Bluebook (online)
539 P.2d 178, 24 Ariz. App. 374, 1975 Ariz. App. LEXIS 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-industrial-commission-arizctapp-1975.