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Stephens v. Miami Copper Co.

Supreme Court of Arizona

November 2, 1942

DAVID J. STEPHENS, Petitioner,
MIAMI COPPER COMPANY, Defendant-Employer, and THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant-Insurance Carrier, Respondents

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.

Mr. Wm. H. Chester, for Petitioner.

Messrs. Morris & Malott, and Mr. James R. Malott, Jr., for Respondent Defendant-Employer.

Mr Rouland W. Hill, for Respondent Industrial Commission.


Page 508

[59 Ariz. 529] LOCKWOOD, C.J.

On October 17, 1936, David J. Stephens, petitioner, filed a claim with the Industrial Commission of Arizona, called the commission, for injuries occurring in the course of his employment by Miami Copper Company. On January 25, 1937, the commission awarded him compensation in the amount of $286 for temporary disability. Motion for rehearing was duly made and granted, and an amended award of $200 additional for permanent partial disability was made. Petitioner accepted this and waived any further rehearing of the right of appeal, and released all further claims on account of his injuries. The medical authorities on whose reports both awards were based were Doctors John E. Bacon, R. F. Palmer, then the medical adviser of the commission, and Thomas W. Woodman. There was a difference of opinion among them as to petitioner's condition and its cause.

On July 31, 1941, petitioner applied to have the case reopened on the ground that further complications resulting from the injury had developed which were not known to the commission at the time of the previous award. The commission reopened the case and [59 Ariz. 530] petitioner was examined by Dr. R. F. Palmer, who had examined him before the first two awards but was no longer the medical adviser of the commission, Dr. James R. Moore, the assistant medical adviser of the commission, and the Pathological Laboratory in Phoenix, all making reports to the commission as to the result. The report of Dr. Palmer was filed August 15, that of Dr. Moore August 14, and that of the Pathological Laboratory August 19. Thereafter petitioner was twice examined by the medical advisory board, and a report submitted, the first dated August 25 and the second October 27, 1941. He was also X-rayed and given further tests by the Pathological Laboratory which reports on the results of its tests.

On December 29, 1941, a hearing was held before the commission's referee, petitioner being present in person and by his attorney, Wm. H. Chester, and James A. Malott as representing the employer. The various reports referred to were offered in evidence, and counsel for petitioner stated that he desired to cross-examine all of the members of the medical advisory board who signed its reports. Doctors C. E. Yount, F. W. Butler, H. B. Lehmberg, J. B. Littlefield, Warner W. Watkins and James Lytton-Smith, being all of the members of the board who signed the two reports above referred to, were examined and cross-examined by counsel. Among the questions most of them were asked as to whether, in making their examinations, they had read and taken into consideration the last report made by Dr. R. F. Palmer. Dr. Yount stated he had no recollection of having seen Dr. Palmer's report before the medical advisory board considered the case and rendered its opinion. Dr. Butler stated that he had not read the report. Dr. Lehmberg was not asked whether he had read it. Dr. Littlefield stated he thought he had considered Dr. [59 Ariz. 531] Palmer's report, but was not certain. Dr. Watkins stated specifically that he had examined the report and considered it. Dr. Lytton-Smith stated that he thought he had read it and that it was also read to the entire board. Several stated it would have been better practice to take into consideration the opinion and report of Dr. Palmer before reaching a conclusion. During the hearing counsel for petitioner stated that he desired to cross-examine Dr. Palmer, but there is nothing in the record to show that a request was made that Dr. Palmer be subpoenaed or that he ever did appear, and petitioner submitted his case on the record as made, without so far as the record shows insisting upon the presence of Dr. Palmer. The report of Dr. Palmer substantially concluded with a statement that the disability of petitioner had markedly increased since the previous award was made, together with his medical reasons for such a conclusion, and that this was a result of the original injury. The report of Dr. Moore was to the effect that there was nothing except petitioner's own statement to show that there had been any new development since that award. The unanimous report of the medical advisory board on that point was as follows:

"The question which the Board has been requested to determine is whether there is new and additional disability developing in this patient since April 1, 1937. Based on the patient's description of his condition at the date mentioned and on the record of findings of Dr. T. W. Woodman, as contained in his report dated March 31, 1937,

Page 509

this Board does not find that the disability has increased or is any greater than indicated by Dr. Woodman's findings of March 31, 1937."

The commission found as follows:

"4. That the evidence is insufficient to establish that any new and additional disability which has developed since April 1, 1937, is the result of the injury [59 Ariz. 532] sustained by the applicant on October 2, 1936, while in ...

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