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Tashner v. Industrial Commission of Arizona

Supreme Court of Arizona

April 9, 1945

HARRY E. TASHNER, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, and RAY GILBERT, EARL G. ROOKS and FRED E. EDWARDS, Members and Commissioners of said the Industrial Commission of Arizona, and A. E. WENSEL, Defendant Employer, Respondents

APPEAL by certiorari from an award of The Industrial Commission of Arizona.

Award set aside.

Mr. Leo T. Stack, and Mr. Byron M. Partridge, for Petitioner.

Mr. H. S. McCluskey, and Mr. David P. Jones, for Respondent Industrial Commission.

Mr. C. Leo Guynn, for Defendant Employer.

Morgan, J. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan, J.

Page 609

[62 Ariz. 334] This is a rather extraordinary case. There is no contest as to the actual facts. Petitioner, a man about 53 years of age, weighing 114 pounds, a painter by profession, was injured while in the employ of the respondent A. E. Wensel, on April 13, 1942. In the process of lifting and moving a 70-pound ladder he lost his balance. In an effort to prevent the ladder from falling on a window at the house, he severely wrenched or strained his back, the immediate effect being a sharp pain in the lower part of his back. He completed his work that day with considerable difficulty. He was bedridden for sometime, and was thereafter [62 Ariz. 335] unable to work. It is conceded that since the date of the injury he has not been able to perform any manual labor which entails in any way the use of the back.

The accident was not reported to the commission until August 17, 1942. Later that year a formal claim was filed. Petitioner was awarded compensation totaling $ 2,102.47 for the period August 17, 1942, to November 29, 1943. During all of the year 1943, up to November 8th, the petitioner was under the care and observation of doctors whose services were paid for by the commission. The only objective symptoms discovered were a very narrow disc space between the vertebral body and base of the sacrum, causing them to be almost in contact, and a condition described as fascitis, an inflammation of the tissues covering the left buttock muscles of a cordlike character. Either of these conditions could have resulted from the trauma (pressure) and strain (tearing) incident to the injury. The subjective symptoms were continual pain and tenderness in the region of the lower vertebrae on the left side and the left buttock. Various tests applied rule out any possibility that petitioner's condition was the result of any disease, infection, constitutional or postural defect. Prior to the accident he had never suffered from backache, had sustained no injury and lost no time. He was not malingering.

On November 8, 1943, the medical advisory board examined the petitioner. They filed a report as of that date finding the medical facts substantially as above set forth. Their conclusion was, "As a result of our examination it is our opinion that any disability he may have suffered as a result of his accident has terminated."

Based upon the opinion of the board, the commission stopped compensation. Petitioner protested. On October 20, 1944, he was given a rehearing. He produced numerous witnesses of unquestioned veracity, several [62 Ariz. 336] being ministers, who testified that from the period November 29, 1943, up to the date of rehearing the petitioner continued totally disabled. It is admitted that reports of the commission's own investigators confirmed this fact. The petitioner was without means to employ medical experts to report on his condition. The commission did not have him examined by its own doctors or experts after November 8, 1943.

On November 20, 1944, the commission confirmed its award of the previous year, and found that the petitioner had no disability as a result of his injury from and after November 29, 1943. Through the usual certiorari proceedings this award comes before us. This court has uniformly held that where the order or finding of the commission is based on reasonable evidence, it will be upheld. The only evidence in the record which supports the commission's order is the conclusion of the medical board, as made on November 8, 1943. The sole question ...


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