APPEAL by Certiorari from an Award of The Industrial Commission of Arizona.
Messrs. Ellinwood & Ross, and Mr. William A. Evans, for Petitioner.
Mr. John R. Franks, and Mr. H. S. McCluskey of Counsel, for Respondents.
LaPrade, J. Stanford, C. J., and Morgan, J., concurring.
[63 Ariz. 380] This proceeding is before us on certiorari from an award of the Industrial Commission awarding compensation to Waldo DeWitt, the injured employee. The Phelps Dodge Corporation, the employer, is the petitioner securing this review. The facts of the case are not in dispute and may be stated as follows: The employee, while engaged in the usual course of employment, suffered an injury to his back occasioned in the following manner. DeWitt picked up [63 Ariz. 381] a rim mounted but deflated truck tire, which is estimated to have weighed at the time 70 to 100 pounds; took one step; threw and pushed the rim and tire up into the truck. At this moment, he experienced what he described as -- "felt like a hot iron hit me in the back of the head; like the world was whirling around, and everything went blank." He turned and walked unsteadily to a nearby bench; sat down; broke into sweat and tremors; and, in a faint condition, eased off the bench to the ground. He was taken promptly by automobile to the office of a doctor, and on the way complained of pain in his head and arms. On arrival at hospital he was in a state of shock, and
afflicted with tremor in both his right arm and right leg. Shortly thereafter he filed a claim for workmen's compensation, claiming disability as a result of partial paralysis of the right side, which condition persisted for at least six months. He was treated by seven different doctors including three neurologists. Various inconclusive hypotheses were suggested as to the neurological sources of the symptoms manifested. There was some disagreement as to the extent of disability, but no indication was found of physical injury from external cause. The medical evidence indicates that the employee suffered some internal strain, sprain, rupture, or hemorrhage.
Two months after the incident, he was examined by Dr. A. C. Kingsley, nerve specialist. His report, in part, read as follows:
"Sudden onset with unconsciousness would indicate cerebral or high cervical lesion. There is at this time sensory disturbance involving the third and fourth cervical roots as well as the lower cervical area. Whether at time of injury a partial dislocation or hemorrhage high in cervical cord it is difficult to state."
There was nothing unusual in the manner of picking up the tire and rim. No apparent overexertion was involved; no untoward or unexpected event took place, [63 Ariz. 382] such as slipping, falling, or being struck. The claimant, prior to the accident, had enjoyed good health, and was strong and accustomed to performing hard manual labor. There is no evidence in the record to indicate that the employee was suffering from any preexisting disease or ailment.
In challenging the award, the petitioner advances the following proposition: "In order that an employee be entitled to compensation, there must be an injury which is caused by some external event of an unusual or unexpected nature." Petitioner calls attention to the various code sections which limit compensation to cases where the employee has sustained an "injury by accident and arising out of and in the course of his employment." Code 1939, § 56-930 (Emphasis supplied.) It is petitioner's position that this case is ruled by Rowe v. Goldberg Film Delivery Lines, Inc., 50 Ariz. 349, 72 P.2d 432, which with other decisions of this court followed Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017. On the other hand, respondent, in its brief, contends that the Pierce case in effect was overruled by In the Matter of Mitchell, 61 Ariz. 436, 150 P.2d 355, and that the latter case is controlling here.
Here it might be well to indicate that in the Pierce case the employee was suffering from pre-existing myocarditis, of which he was aware. Additional facts in the Pierce case were that during the morning Pierce climbed up and down ladders in the mine without showing any bad effects or making any complaint. When the noon hour arrived, he sat down to eat his lunch and had just finished the meal when he arose from a sitting or reclining position, walked a few hundred feet, suddenly collapsed, and died a few moments later.
In the Rowe case the employee leaned over to pick up two boxes of films, at which time he experienced a pain in his chest, and suffered a spontaneous pneumothorax. There the chief concern of the court was to [63 Ariz. 383] determine whether or not there had been an injury by accident. We have at no time held ...