Martin S. Rogers, of Tucson, attorney for petitioner.
Donald J. Morgan, of Phoenix, attorney, and Robert E. Yount and H. S. McClusky, Phoenix, of counsel, for respondent.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur.
The facts in this case are that the petitioner, Stephen Giulio, hereinafter called applicant, was employed for a short period of time during the year 1946 by the Mann Lumber Company of Tucson, as a truck driver hauling lumber from McNary, Arizona, to Tucson. As a part of his duties he was required to assist in loading the lumber on the truck at McNary and unloading it at Tucson.
On the 23d day of March, 1946, while assisting in unloading a heavy load [69 Ariz. 257] of lumber at Tucson some braces on the front part of the truck broke, permitting that part of said truck to rear up in the air approximately 8 feet and then drop to the ground. At the time this occurred applicant was seated in the cab of the truck and as a result of the severe jolting therefrom suffered an injury to his spine. The exact nature of the injury has not even to this date been definitely determined by the medical profession and no specific finding has yet been made by the industrial commission as to the exact character of the injury.
Immediately after the injury applicant was taken to the Pima County Hospital and placed under the care of Dr. J. Donald Francis who caused X-rays to be taken and diagnosed the injury as a compression fracture of the third lumbar. This diagnosis was supported by Drs. R. E. Hastings, R. W. Manning, Dr. Meade Clyne and Drs. Harvey, Faris and Hayden, X-ray specialists who also examined him about that time. This view was also apparently assumed by the medical advisory board consisting of Drs. Lytton-Smith, Hastings, Sult, Harris, Williamson and Southworth. Although these gentlemen made a physical examination of applicant, their report to the Industrial Commission (hereinafter called the commission) indicates that their decision is based in part upon medical reports then before them. Dr. George L. Dixon, after an examination of the applicant, reported to the commission on June 11, 1948, that he was of the opinion that there was a compression fracture to both the second and third lumbar vertebrae. Dr. Francis later at a hearing before the commission on January 4, 1949, expressed doubt as to whether there had been a compression fracture to the third lumbar vertebra and Dr. Warner Watkins of Phoenix, after examining all the X-rays taken from 1946 to 1948 inclusive was of the opinion that there had not been a compression fracture of any of the vertebra but on the other hand stated that what the doctors theretofore examining
the applicant had considered as a thickening of the third lumbar vertebra was in fact calcific plaques in the abdominal aorta and not a thickening of the third lumbar at all, and that the evidence of a lumbar fracture is inconclusive.
Dr. E. E. Johnson, osteopath, diagnosed the injury as an injury to the facets of the lumbar joints which he says would not show up on the X-rays because of certain fibrous tissue growths forming in the ligaments around the joints.
On May 23, 1947, the commission made its findings and award, finding that the applicant was injured on March 23, 1946, by accident arising out of and in the course of his employment, and allowed accident benefits and compensation for temporary disability to May 9, 1947. Nowhere in the record does the commission disclose whether the award is based upon total or partial temporary disability.
[69 Ariz. 258] On October 9, 1947, the commission made an amended findings and award allowing additional compensation based on temporary disability from May 10, 1947, until further order of the commission; and on May 3, 1948, the commission made its second amended findings and award for temporary disability ...