J. S. OLIVE, Petitioner,
THE INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, SAM W. PROCTOR and L. C. HOLMES, as Members of and Constituting the Industrial Commission of Arizona, and W. G. TOLLESON, Respondents
APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.
Messrs. Armstrong, Kramer, Morrison, Roche & Duffy, for Petitioner.
Messrs. Palmer & Cornelius, for Respondent W. G. Tolleson.
[52 Ariz. 461] LOCKWOOD,
J. S. Olive, hereinafter called petitioner, has brought an award of the Industrial Commission, hereinafter called the commission, before us for review. The admitted facts are as follows:
On November 11, 1936, and for some time prior thereto, petitioner was employed as a carpenter's helper by W. G. Tolleson. On that date petitioner was working on the roof of a dwelling being erected for his employer, and while in the course of his employment stepped from the roof on to an adjacent staging, when a plank broke and he was thrown to the ground. He received many minor bruises, but his chief injury was a rupture of the spleen. He was immediately taken to a hospital, and in order to save his life, it was necessary to remove the entire spleen, which was done. Thereafter he received three separate blood transfusions and gradually regained his health, to some extent at least. Application was duly made to the commission for compensation, and on investigation it was found that petitioner's employer was not insured for compensation under the law, although both he and petitioner were subject to its terms and to the jurisdiction of the commission. An award for total temporary disability was made in favor of petitioner under section 1433, Revised Code 1928. He eventually recovered sufficiently to resume his work, which was at times that of a carpenter's helper and at other times that of a lettuce cutter and packer. However, it was recognized by all parties that the removal of the spleen might cause a permanent partial disability, and in the [52 Ariz. 462] award the commission specially reserved jurisdiction to investigate and decide whether any permanent partial disability existed. No motion for rehearing was made on this award, which was entered on the 13th of March, 1937, and no further action was taken by the commission until petitioner requested an investigation as to whether he was suffering from a partial permanent disability. A hearing on this question was held on the 12th of January, 1938, and the commission found that there was no permanent partial disability. Petitioner asked for a rehearing, which was granted, and the commission at such rehearing affirmed its award, which, so far as material, was in the following language:
"6. That said applicant because of said injury suffered the
loss of his spleen, which loss did not result in any partial permanent disability,"
and denied further compensation, whereupon the matter was brought before us in the usual manner.
Petitioner sets forth the legal propositions, on which he bases his claim, in the following language:
"(1) When it is a known fact that a person has through an injury arising out of his employment suffered the loss of his entire spleen by removal, there is a conclusive presumption that he has been permanently disabled in part by reason of the organic loss, and unless that conclusive presumption is rebutted by substantial evidence he is entitled to compensation therefor.
"(2) Where a person suffers the loss of his spleen through an injury arising out of and in the course of his employment, and all of the affirmative evidence is to the effect that there is a partial permanent disability resulting therefrom and the only other evidence in the case is negative and does not give a definite opinion either one way or another on the matter, there is a partial permanent disability that is compensable.
"(3) While it is true that a finding of the Industrial Commission based upon a controverted issue of fact [52 Ariz. 463] will not be disturbed on review, if it appears that there is no substantial evidence to sustain the finding of the Industrial ...