LEE MOOR CONTRACTING COMPANY and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED, Petitioners,
THE INDUSTRIAL COMMISSION OF ARIZONA; RAY GILBERT, EARL G. ROOKS and FRED E. EDWARDS, as members of and constituting the Industrial Commission of Arizona; and J. B. RHOADES, Respondents
APPEAL by certiorari from an award of The Industrial Commission of Arizona. Award affirmed.
Messrs. Jennings & Salmon and Mr. Ozell M. Trask, for Petitioners.
Mr. H. S. McCluskey and Mr. FredO. Wilson, for Respondent Industrial Commission.
Messrs. Cox & Cox, of Phoenix, Arizona, and Mr. Jacob H. Steinberg, of New York City, for Respondent Rhoades.
[61 Ariz. 53] WINDES,
J. B. Rhoades, hereinafter referred to as claimant, was employed by petitioner, Lee Moor Contracting Company, and while so employed, on July 17, 1939, jumped to escape a falling crane boom and as a result thereof injured his left ankle. He was treated from that date continuously by Dr. J. H. Patterson and a number of other physicians and surgeons up until August 7, 1940, when the first findings and award were made in the case awarding him temporary disability for the time he had been away from work and, in addition, giving him an award of permanent partial disability equaling 10% of the loss of the function of the left foot. A petition for rehearing was filed and a hearing granted upon which the Commission entered its decision upon rehearing affirming the award of August 7, 1940. This decision upon rehearing was filed October 18, 1940. No appeal was taken from this award and it thereupon became final. Subsequently, and on March 12, 1941, a petition to reopen the case was filed alleging an increase in the disability, a hearing was granted and a decision was made upon that rehearing awarding an additional sum of $459.38 for traumatic neurosis. This award was made on July 7, 1941, and became final, no motion
for rehearing having been filed or appeal taken. Thereafter, and on March 2, 1942, an application for readjustment of compensation was filed. A hearing on this application was denied by the Commission, which denial resulted in an appeal to this court [61 Ariz. 54] by certiorari and a decision setting aside the order of the Commission denying a hearing on the application for readjustment of compensation. Rhoades v. Lee Moor Contracting Co., 60 Ariz. 161, 132 P.2d 432. Following this decision a rehearing was had and as a result thereof the Industrial Commission found, in addition to matters not herein contested, the following:
"That on July 17, 1939 said applicant, among the injuries, sustained an injury to his back which aggravated, accentuated, accelerated, and exacerbated a pre-existing arthritic condition in his spine. That the aggravation of said arthritis has progressively increased; that by reason of the traumatic aggravation of said arthritic spine and by progress of same, applicant has been temporarily and totally disabled at all times subsequent to the filing of his application for readjustment of compensation on the 2nd day of March, 1942; that in all reasonable probability said temporary total disability will continue indefinitely or until relieved in whole or in part by proper medical care; and that said disability resulted from the aggravation of the pre-existing arthritic spine resulting from the injury to the claimant's spine on the 17th day of July, 1939, and the progress of the same entitling said applicant to 65% of his average monthly wage of $156.00 per month, plus dependent's allowance of $10.00 per month, not to exceed 100 months, from which 100 months there is to be credited and deducted $1,392.50, representing the period from July 18, 1939 to July 26, 1940."
The contention is that for lack of evidence the Commission was not legally warranted in finding that claimant had sustained an injury to his back and in finding that there was any disability due to aggravation of a pre-existing diseased spine caused by the injuries sustained.
Claimant testified that in addition to the ankle injury he sustained an injury to his back, close to the [61 Ariz. 55] bottom of his spine, between his hips and the bottom of his spine. Shortly after the accident, according to claimant and Dr. Patterson, the attending physician, he complained about his back. Several doctors gave expert testimony. There seems to be no question that claimant at the time of the hearing was suffering not only with the ankle injury but likewise with an arthritic condition of the spine and that he was at the time totally disabled and unable to perform his usual work of manual labor. The dispute arises over the cause of the spinal condition. Doctors Patterson and James R. Moore believe there is no casual connection between the accident and the resulting injury and the existing spinal condition. On the other hand, Dr. Ralph Palmer, while recognizing that claimant had a pre-existing osteoarthritis which was not at the time of the accident causing disturbance, thinks there was perhaps sufficient force to aggravate this condition and stimulate it into an infectious type of progressive arthritis. The doctor further thinks that osteoarthritis found in most men over forty years of age who work with their backs will continue as such throughout life and not be disabling unless there occurs some circumstance introducing an infection or breaking down resistance to infection. And finally, Dr. Palmer testified:
"Q. In other words, it is your opinion that had he not received his injury by accident on or about July 17, 1939, nor any injury of magnitude enough to aggravate the arthritis, the arthritic condition, since the date of that injury that he would today still be able to do manual labor? A. Yes, that is my opinion.
"Q. And he isn't today, Doctor, able to do any manual labor, is ...