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Aluminum Co. of America v. Industrial Commission of Arizona

Supreme Court of Arizona

October 9, 1944

ALUMINUM COMPANY OF AMERICA, Acting for and on Behalf of DEFENSE PLANT CORPORATION, Phoenix Works, HEDRICK-BECK-BATE, Contractors, and AETNA CASUALTY AND SURETY COMPANY, Petitioners,
v.
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 H. W. GREEN, Respondents

APPEAL by Certiorari from an Award of The Industrial Commission of Arizona. Award set aside.

Mr. Wallace W. Clark, and Messrs. Hill, Robert & Hill, for Petitioners.

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

Messrs. Cox & Cox, and Mr. Lloyd Canfil, for Respondent Green.

Mr. Alfred C. Lockwood, Amicus Curiae.

Mr. F. C. Struckmeyer, Amicus Curiae.

OPINION

Page 298

[61 Ariz. 522] UDALL, Superior Judge.

This case grows out of a claim for compensation filed by respondent, H. W. Green, against the employer and insurance carrier, named in the caption, and hereinafter referred to as the petitioners. The respondent, Industrial Commission of Arizona, on October 1, 1943, made a permanent total disability award to Green. A petition for re-hearing was allowed and the hearing held on December 22, 1943; thereafter, on January 7, 1944, the Commission rendered its decision on re-hearing affirming its original award. The petitioners being dissatisfied therewith have brought the matter before [61 Ariz. 523] this Court for review, it being their principal contention that the findings and award are not supported by the evidence.

The respondent Green, hereinafter called the applicant, is a white male, who at the time of the injury was 59 years of age. He was a skilled carpenter and structural steel worker, which occupation he had followed for many years. During the two or three years immediately preceding the accident he had not lost any time from work by reason of any sickness or ailments causing disability and he worked steadily, except while going from one job to another, or when he wished to lay off. In the thirty days immediately preceding his injury he earned $281.88; and in the year previous between $2400 and $2800.

The applicant went to work for Hedrick-Beck-Bate, contractors, one of the petitioners herein, at the Aluminum Plant, near Phoenix, on February 10, 1943. On March 20, while working as a carpenter on the second floor he stepped on a loose board which threw him off balance, and to prevent falling some 15 feet he caught himself on the cross-arm of a ladder and swung by one arm, twisting his body and injuring the lower part of his back and spine.

He was first examined and treated by Dr. Norman A. Ross, who in his initial report to the Commission, dated March 30, described the injury as "right lumbosacral sprain and spasm right lumbar." The doctor further stated that the X-ray diagnosis showed "no recent bony injury." The report made no reference to any other disabling condition not due to the accident, though that specific question was asked. He estimated that the applicant would be able to resume light work in three or four weeks.

Temporary total disability was awarded the applicant by the Commission on May 7, the justness of which is not questioned. The injured man was unable [61 Ariz. 524] to return to work and on May 27, more than two months after the accident, he was examined by a Medical Board, composed of Drs. A. C. Kingsley, Willard Smith and A. M. Tuthill. Then for the first time "the usual sign and symptoms of Parkinson's disease" were noted in their report to the insurance carrier. In addition the report showed a definite old osteoarthritis of the spine and pelvis which had been aggravated by the accident. They pronounced him totally incapacitated for any form of manual labor. None of the parties question the fact that the injured man has been unable to perform any work since the accident of March 20, 1943, nor is it contended that he will ever be able to again perform manual labor.

The Industrial Commission, after extended hearings, found that the applicant while employed in the State of Arizona by the above named defendant employer sustained an injury arising out of and in the course of his employment (the details of the accident and resulting injury and

Page 299

wages earned were recited as we have heretofore set them forth), and concluded:

"1.... Prior to his injury, said applicant had a pre-existing arthritic condition of the back which was aggravated by the said injury; and Parkinson's disease which retards recovery."

"3. That said applicant is totally disabled and will continue to be totally disabled for the remainder of his life by reason of said injuries and the aggravation of pre-existing disease and pre-existing disease retarding recovery."

On the basis of these findings the Commission made an award for accident benefits and temporary total compensation amounting to $1185.57, and the additional sum of $183.22 monthly during the ...


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