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Hoffman v. Brophy

Supreme Court of Arizona

May 22, 1944

PAUL HOFFMAN, Petitioner,
v.
PAUL M. BROPHY, Respondent-Employer, THE INDUSTRIAL COMMISSION OF ARIZONA; RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of and Constituting the Industrial Commission of Arizona, Respondent-Insurers

APPEAL by certiorari from an award of the Industrial Commission of Arizona. Award set aside.

Messrs. Cox and Cox and Mr. Lloyd E. Canfil, for Petitioner.

Mr. Alfred C. Lockwood, for Respondent-Employer.

Mr. H. S. McCluskey and Mr. Fred O. Wilson, for Respondent-Insurers.

OPINION

[61 Ariz. 308] UDALL, Superior Judge.

The petitioner, Paul Hoffman, on February 15, 1940, while working for Paul M. Brophy on a farm near Casa Grande, Arizona, was injured in an accident compensable under the Workmen's Compensation Law (Chapter 56, Article 9, Arizona Code Annotated 1939). The respondent employer carried industrial insurance with the Industrial Commission of Arizona, as insurance carrier.

Timely application was made by the petitioner to the Industrial Commission for compensation, and on June 28, 1940, it awarded him compensation for temporary total disability. Petitioner protested the award and the Commission made amended awards and findings on May 3, 1943, May 24, 1943, and September 9, 1943. The third amended award, made on the date last stated, recited that compensation for the temporary total disability had been fully paid, and then found "said injury caused also a permanent partial disability equal to 25% of a permanent total disability, entitling said applicant to compensation therefor [61 Ariz. 309] in the sum of $7.63 monthly during the life of said applicant." The award was in accordance with this finding and the petitioner

Page 161

being dissatisfied therewith has bought them before this Court for review.

Petitioner attacks the award in this case on three grounds: (1) That the findings are legally insufficient to sustain it, (2) that the commission used an illegal method in evaluating the evidence and determining the ultimate facts, and (3) that the evidence, properly considered, is insufficient to sustain the findings.

The accident in which petitioner was involved occurred while he was loading commercial fertilizer. He fell from a trailer onto the trailer hitch, striking his lower back and spine, causing bruises and contusions in the lumbar region of the back. While the X-ray disclosed no visible fracture, there was definite evidence of injury to the twelfth dorsal vertebra. The injured man was first treated by a doctor at Casa Grande, and the next day he was removed by ambulance to the Pinal County Hospital at Florence, where he remained for some seventeen days.

Between the date of the injury and the final award the petitioner was treated or examined by some fourteen reputable physicians, several of whom were of his own choosing. Numerous X-rays were taken, pathological laboratory tests made, and all that modern medical science could do for him was done, at the expense of the Commission. A Medical Rating Board, paid by the commission, but chosen in part by the petitioner or his attorney, first gave him a "functional physical disability" rating of 5%, and later on this was increased to a 25% disability.

It appears from the record that the petitioner, who was then forty-eight years of age, enjoyed good health prior to the injury, and was able to do all kinds of heavy manual labor. He stoutly maintains that he has been unable to do any gainful work since the time [61 Ariz. 310] of the injury, that he suffers pain constantly, that his earnings have been practically nil, and that he has subsisted only by reason of the generosity of relatives and friends, with some aid having been received from public charitable agencies. There is some evidence that he could do light work such as dish washing, poultry raising, etc.

There is a slight conflict as to the amount of the monthly wage paid petitioner prior to his injury; it ranged from $55 to $61, which included an allowance for house rent. While there is no explicit finding by the commission as to his earnings, from the award it can be mathematically determined that the Commission found that his wage was $55.50 per ...


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