Waller v. Industrial Commission

406 P.2d 197, 99 Ariz. 15, 1965 Ariz. LEXIS 299
CourtArizona Supreme Court
DecidedSeptember 30, 1965
Docket8173
StatusPublished
Cited by45 cases

This text of 406 P.2d 197 (Waller v. Industrial Commission) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waller v. Industrial Commission, 406 P.2d 197, 99 Ariz. 15, 1965 Ariz. LEXIS 299 (Ark. 1965).

Opinion

UDALL, Justice.

By certiorari petitioner seeks review of an award of the Industrial Commission denying him compensation for an alleged injury by accident arising out of and in the course of his employment. This is the third time this case has been before this Court; however, in neither of the prior cases did we resolve the issues that we are now asked to decide. Waller v. Howard P. Foley Company, 94 Ariz. 225, 382 P.2d 693 (1963); Waller v. Howard P. Foley Company, 90 Ariz. 337, 367 P.2d 795 (1961).

Petitioner, Roy A. Waller, fell while working on a scaffold on February 10, 1960. He was employed at that time as a journeyman electrician for the Howard P. Foley Company at Hayden, Arizona. Petitioner claims injury to his back, shoulder and neck as a result of the accident.

After the accident, petitioner remained in the hospital in Phoenix for approximately four weeks. He was examined on March 8, 1960 by a group of three doctors, appointed by the Commission, and by its medical advisor. They were of the opinion there was no evidence of organic disease or residuals of the injury and that in two weeks the patient could return to his regular work. Petitioner was released from the hospital on the following day and his claim proceeded to a point where, on May 2, 1960, he was granted medical benefits to March 22, 1960, and compensation to March 21, 1960. The Commission made a finding that “applicant has no physical disability resulting from the accident.” This finding was reaffirmed by the Commission in its “Decision upon Rehearing and Findings and Award”, dated November 6, 1963.

Petitioner has a history of injuries which dates back to 1954. Prior to the accident in 1960, he had been treated at least three other times for injuries to his back. In 1959, due to one of these injuries, he was hospitalized for thirty-three days in Wyoming. Less than three months before the injury in question he suffered a back sprain in Tempe, Arizona and received medical treatment for the injury although he did not lose any time from work.

*18 After being released from the hospital in March 1960, petitioner returned to his home in Magnolia, Arkansas. On April 19, 1960, he sought employment and returned to his regular work as a journeyman electrician. Because of his alleged inability to perform his duties, petitioner sought additional medical treatment. On May 14, 1960 petitioner was finally referred to Dr. Kenneth Jones, an orthopedic specialist in Little Rock, Arkansas, who concluded that, as a result of the three accidents, petitioner had suffered permanent injury to his back. In the course of .the examination Dr. Jones did a myelogram but the results were inconclusive and he did a discogram. On the basis of the discogram, Dr. Jones concluded that petitioner was suffering from a degeneration of the disc at the 1^-4, L-5 level. On May 31, 1960, Dr. Jones operated upon petitioner and found an extruded disc at the L-4, 1^5 level which was surgically removed. The disc at the L-5, S-l level was also removed. On October 11, 1960, in a report to the Industrial Commission, D'r. Jones stated: “this patient does experience residual permanent partial disability which will ultimately prove to be in the nature of approximately 20 to 25 per cent as related to the body as a whole as a result of the disability of the right shoulder, cervical region and the residual disability in the lower lumbar area.”

Petitioner first contends that “The Industrial Commission erred in its Findings 7 to 12 of its ‘Decision upon Rehearing and Findings and Award’, dated November 6, 1963 (Record 56), particularly as to Finding No. 9 stating ‘that applicant’s disability, if any, is not related to nor caused by the injury of February 10, I960’, * *

The petitioner is faced with certain well accepted rules of workmen’s compensation law in establishing his claim for compensation. 1 A claimant has the burden to affirmatively show that he is entitled to compensation and the Commission is not required to disprove such a claim. Helmericks v. AiResearch Mfg. Co. of Arizona, 88 Ariz. 413, 357 P.2d 152 (1960). Also, where the evidence is in conflict or different inferences may be drawn therefrom, findings of fact of the Commission will not be disturbed and, where two-inferences may be drawn, the Commission is at liberty to choose either and its conclusion -will not be disturbed unless it is wholly unreasonable. Books v. Industrial Commission, 92 Ariz. 302, 376 P.2d 769 (1962). Muchmore v. Industrial Commission, supra.

Applying these principles to the facts of the instant case, we do not feel petitioner has shown by uncontradicted testimony that any back difficulty he might have had subsequent to the accident of February 10, 1960 was related to the acci *19 dent. There is no question that petitioner was involved in an accident which arose out of and in the course of his employment. Likewise, it is admitted that he was injured and received medical treatment for his injury from this accident. However, petitioner failed to show the medical or legal causation between the accident of February 10, 1960, and the subsequent disc surgery of May 31, 1960. The Commission found that petitioner underwent surgical correction for degenerative disc and, relying upon their medical advisor, stated that such degeneration was the result of the aging process and multiple minor trauma and not a single injury.

The medical evidence as to the causal connection between the accident and the subsequent surgery is inconclusive. Petitioner’s back surgery was performed by Dr. Jones, who testified at the July 2, 1962 hearing. Dr. Jones reviewed the history of the case, including the three prior accidents which involved injuries to petitioner’s back. Dr. Jones was asked:

“Q. Can you tell or could you tell from an operation such as the one that you performed on Mr. Waller how recent a ruptured disc or slipped disc has been?
“A. No. Only in rare instance can you tell with any degree of certainty exactly how long this thing has been out. * * * ”

The doctor was then asked if there was any way for him to tell whether or not it was a result of the last accident. He answered :

“A. Nothing except the patient’s history, and his history wasn’t conclusive enough as I understood it for me to state specifically where this thing came from. That is the reason I set forth these three histories as I did.”

Dr. Paul Sizemore, petitioner’s family doctor for many years, also testified at the July 2, 1962 hearing. In that hearing Dr. Sizemore was asked:

“Q. Have you examined him after February 10, 1960, with reference to his back ?
“A. I didn’t treat him for this disc deal.”

From this testimony it would appear that Dr.

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Bluebook (online)
406 P.2d 197, 99 Ariz. 15, 1965 Ariz. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waller-v-industrial-commission-ariz-1965.