Phelps Dodge Corp. v. Industrial Commission

560 P.2d 436, 114 Ariz. 252, 1977 Ariz. App. LEXIS 837
CourtCourt of Appeals of Arizona
DecidedJanuary 11, 1977
Docket1 CA-IC 1343
StatusPublished
Cited by6 cases

This text of 560 P.2d 436 (Phelps Dodge Corp. 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
Phelps Dodge Corp. v. Industrial Commission, 560 P.2d 436, 114 Ariz. 252, 1977 Ariz. App. LEXIS 837 (Ark. Ct. App. 1977).

Opinion

OPINION

EUBANK, Presiding Judge.

. This appeal presents the issues of the reliability of the testimony of an expert witness, and the hearing officer’s discretion in refusing to grant a continued hearing.

Respondent sustained an industrial injury to his back on February 7, 1973, and was discharged a year later with a 15% general physical disability. On July 25, 1974, the Industrial Commission issued an award for an unscheduled permanent partial disability predicated upon a 65.91% reduction in monthly earning capacity. Both petitioner and respondent requested a hearing, and three hearings were held. Respondent, who was 62 at time of the hearings, testified, and he had three additional witnesses: Doctors Warren D. Eddy, Jr., and Christopher A. Guarino, both of whom were orthopedic surgeons, and Dr. Thomas Fisher, a psychologist and vocational rehabilitation specialist. Petitioner presented two witnesses: *254 Mr. McBride, the acting manager of the Douglas Multiservice Center, and Mr. Snider, the Labor Department Head of the Phelps Dodge Corporation.

On December 24, 1974, the hearing officer issued his award which found a 100% loss of earning capacity. Upon a request for review, the award was affirmed, and thereafter, review was taken to this Court. Petitioner claims that respondent did not make a reasonable and diligent effort to secure employment because he filed no employment applications, citing Dye v. Industrial Commission, 23 Ariz.App. 68, 530 P.2d 914 (1975). Dye does not stand for such a proposition; petitioner is quoting from the specially concurring opinion. The eases do require that a satisfactory effort to secure employment be made, and our review of the testimony satisfies us that a satisfactory effort was made by respondent when he went to his employer’s Labor Department Head and inquired about the availability of light work. Cf. Davis v. Industrial Commission, 16 Ariz.App. 535, 494 P.2d 735 (1972). Under the circumstances of this case, we do not think that respondent’s failure to make a formal application is of any special importance since it goes to the weight of his testimony, and was a question for the trier of fact.

Petitioner next argues that the testimony of Dr. Fisher, the vocational rehabilitation specialist, does not support the award, since his investigation of employment opportunities was predicated on physical disabilities to which the two physicians did not testify. We will consider this issue together with petitioner’s suggestion that the award was without reasonable support in the evidence.

Dr. Eddy clearly established physical limitations on respondent’s activity:

I would have anticipated at the time of his discharge that he could probably do watchman work. His subsequent—my subsequent observations of him have made me somewhat doubtful of this; not that he couldn’t perform the duties of a watchman which would imply to me anyway that it was just a matter of walking, checking locks and checking in the time clock and things like that, but it would appear that he needs more rest than a constant shift would allow him.
In other words, I doubt that he could sustain a full eight hours on his feet without a period of rest and substantial rest necessary at that time. He has a condition which is called arthritis, osteoarthritis of his back which is expectedly a progressive problem which tends to get along reasonably well at rest but responds very poorly to activity. And as I stated before it is very difficult to quantitate the amount of work that he can perform, but it’s my opinion that this man is a—that is, based on my observation of him for over a year, it is approximately a year, he has been a very sincere man who has never given me any reason that what he has done is make a sincere effort to do what we have asked him to do.
Q I believe you testified that the last time he saw you, either the time before or the last time he saw you, that you advised him that when he has this aggravation of pain that is when it gets to be to the point where it really bothers him; that about the only thing he could do is lie down and stay in bed until he is better and then do what he can do; is that correct?
A That is correct.
Q Do you expect this situation will continue as far as needing days where he is down and needing rest in order to be able to get into activities again?
A Yes.
******
Q (By Mr. Eppstein) Doctor, can you tell us if he does return to—if he does try to do some type of light duty work where he can spend part of the time on his feet and part of his time sitting down, part of his time walking short distances, whether you will expect that even with this type of work there will be periods of time when he will be off work for several days at a stretch?
A I would say that probably if he had a job like that he could do it without *255 particularly being off for a long period, several days at a stretch. Maybe I would rather put it as maybe an occasional day of rest he may need under those circumstances, kind of playing it by ear, working, walking, standing, sitting as he is kind of allowed to do.
Q Would such a job require that he sort of be able to use his own discretion as to when he needs the rest and when he can walk and when he can’t?
A To a large extent, yes.
Q How about a job that involves sweeping, such as janitorial work?
A Well, that is not very kind to a back if it is a prolonged thing. Occasionally sweeping certainly wouldn’t bother him, but if that were his primary job it would be very difficult.
Q I believe he testified that he had trouble picking things up off the floor. In fact, he said he couldn’t very well pick things up off the floor. Do you have any comment on this from a medical viewpoint?
A His condition would necessarily obviate stooping. And at his age squatting is not a reasonable substitute.

However, it is important to note the following comment made by Dr. Eddy:

Q Could you give us a list of activities—I am not talking about jobs now, but physical activities that you believe would—this man would be limited in?
A I don’t think I understand the question.
Q Well, you mentioned, for example, repeated bending; would you give us a list of activities and perhaps, if you can estimate the time that he could engage in any of these activities. If you believe that this would be mostly up to the Applicant then say so and we will handle it from there.
A I can’t look at him and say and quantitate his activity very well. We have to take an awful lot of this on trusting the individual. That is all.

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Cite This Page — Counsel Stack

Bluebook (online)
560 P.2d 436, 114 Ariz. 252, 1977 Ariz. App. LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelps-dodge-corp-v-industrial-commission-arizctapp-1977.