HARTFORD ACCIDENT & INDEMNITY CO.
INDUSTRIAL COMMISSION et al
Proceeding under the Workmen's Compensation Act by Mrs. Glenna F. Griffith, claimant, opposed by the Hartford Accident & Indemnity Company, a corporation, insurance carrier of the employer, to recover compensation for injuries in an alleged accident. To review an award of the Industrial Commission awarding accident and temporary disability benefits to claimant, the insurance carrier appeals on certiorari.
Award set aside.
Conner & Jones and Charles E. Conner, all of Tucson, for plaintiff.
Robert E. Yount, of Phoenix (H. S. McCluskey, of Phoenix, of counsel), for respondents.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[66 Ariz. 260] This appeal is before us on certiorari from an award of The Industrial Commission awarding accident and temporary disability benefits to the claimant Mrs. Glenna F. Griffith, an employee of Safeway Stores, Inc. Petitioner was the insurance carrier of the employer. The Commission in its findings found that the applicant employee on June 22, 1946, sustained a personal injury by accident arising out of and in the course of her employment. Petitioner objects to the award on the ground that the finding of fact that claimant sustained a personal injury by accident arising out of and in the course of her employment is not supported by the evidence; is contrary to the evidence; is founded on mere speculation, surmise and possibilities; and consequently the Commission
was without jurisdiction to make the award.
The applicant was first employed by the employer in one of its Tucson stores in the month of July, 1945, and remained continuously employed by it up until June, 1946, the time of the alleged accident and her operation hereinafter referred to. She was employed as a cashier though occasionally assisted in the restocking of empty shelves. The operation referred to consisted of replacing a dropped kidney by sewing it to the twelfth rib, which operation was performed June 26th. The applicant returned to her same employment on August 15, 1946, and was so employed at the time the award was made on January 22, 1947.
A brief resume of the facts so far as material to this review is as follows. The applicant testified that as early as 1938 she began to have trouble with her side, which occasionally on wakening in the morning would be sore and painful. From 1938 until the time she went to work for her employer herein she had very little difficulty with her side but was conscious of some abnormal sensations and pains. In November or December, 1945, she suffered acute pain in her side, felt as if her side was "swelling up inside, like something was pushing it out." One morning in December, 1945, on rising she noticed the pain very definitely and felt ill. Nevertheless she reported for work, but during the day at a time when she was price-marking nuts she was overcome by the pain. At this time a physician was called and she remained away from work a couple of days. For a few months thereafter she took various treatments -- sulpha tablets and penicillin shots -- which gave her some relief, [66 Ariz. 261] though she was bothered every few days with "burning" and "difficulty in urination." On June 18, 1946, she waked feeling bad and experiencing the sensations related above, especially the feeling that her side was "swelling up," but she reported for work. Upon arriving she made known her condition and was told to lie down and did not engage in any work that day. At this time she was examined by Dr. Donald B. Lewis who testified that she had a palpable mass on the right side which he temporarily diagnosed as a dropped kidney. Two days later, on the 20th of June, he performed a cystoscopy to confirm his diagnosis. At the completion of this examination he definitely discovered that the kidney had dropped and that there was an obstruction of the urethra.
Neither the claimant nor the employer filed any accident report until December, 1946, this action being prompted by a suggestion made by the Travelers Insurance Company which company had been paying claimant's benefits as the health insurer of the employee of the employer. This suggestion apparently was made by the Travelers Company upon a report from Dr. Lewis to the Industrial Commission reading as follows:
"According to the history, the condition was present before the accident sustained on June 22. This accident, however, aggravated the existing condition enough so that surgery was necessary."
Prior to making the award the employee was examined by a referee of the Commission. Rather than summarizing her testimony with reference to any accident we shall give the testimony verbatim:
"Q. Now, was there ever an occasion when you had an accident from any source that you know of while you were working? A. None whatsoever.
"Q. There was never an occasion when you fell down or slipped or anything fell on you, or anything of an unusual ...