D. Kelly Turner, Wade Church, of Phoenix, for petitioner.
Robert E. Yount, of Phoenix, H. S. McCluskey and Donald J. Morgan, of Phoenix, of Counsel, for respondents.
Udall, Justice. La Prade, C.J., and Stanford, M. T. Phelps, and De Concini, JJ., concurring.
[69 Ariz. 303] Petitioner, Ben R. Treadway, a 42 year old truck driver employee of respondent Pacific Freight Lines, brings before us for review an award of The Industrial Commission of Arizona, denying him compensation for a claimed personal injury by accident said to have occurred on or about January 25, 1947, and allegedly arising out of and in the course of his employment. The respondent Commission is the insurance carrier.
The case involves a somewhat novel situation in that it is the first time in this jurisdiction that compensation has been asked for an injury by an accident which is claimed to have caused the disease of coccidioidomycosis, more commonly known as "San Joaquin Valley Fever", and also merely as "valley fever". Petitioner's original claim was for benefits under the Arizona Occupational Disease Disability Law. Laws 1943, ch. 26, now appearing as Art. 12, ch. 56, A.C.A. 1939. Inasmuch, however, as this was not one of the occupational diseases listed under that law the Commission rightly determined that it had no jurisdiction in the premises and entered an order denying the claim. This order which was adhered to by it on rehearing has become final as no appeal was taken therefrom. Shortly thereafter petitioner applied for compensation under the Workmen's Compensation Act, Art. 9, ch. 56, A.C.A. 1939. Based upon medical reports and other evidence then before it, the Commission, in an uncontested hearing, found that the applicant had "sustained a personal injury by accident arising out of and in the course [69 Ariz. 304] of his employment", and on May 1, 1947, it made an award for accident benefits and compensation for temporary disability.
The respondent employer, however, protested this award and petitioned for a rehearing for the reason that it was of the belief that further analysis of the freight items (army tents) handled by the petitioner should be made and considered by the Commission before it made a final award. Rehearing was granted and action was taken to secure additional scientific information. It is apparent from the record that the Commission gave this case more than usual consideration due to the complexity of diagnosis and the research necessary to secure adequate information and evidence on this little known subject of "valley fever". Two formal hearings were held where the parties had ample opportunity to submit their evidence. Finally on July 24, 1948, the award (now under review) denying compensation was entered.
The assignments of error are to the effect that the Commission's findings of fact, conclusions of law and award entered pursuant thereto are erroneous, contrary to the evidence and contrary to law. In determining this matter it is our duty to consider the facts in the light most favorable to sustaining the award. Tooley v. Weisbarth, 66 Ariz. 230, 186 P.2d 638. Basically petitioner's case rests upon the premise that in the course of his work in Phoenix, Arizona, during the latter part of December, 1946, he was required to assist in unloading at the Lightning Delivery warehouse, some three or four trailer loads of government surplus property consisting of a number of used army tents which had been shipped to the purchaser from the San Bernardino Air Field at San Bernardino, California. Evidently petitioner expected the Commission to take judicial notice of the fact that by reason of the name "San Joaquin Valley Fever" and a statement from the Supreme Court of California to be hereinafter quoted, that anything coming from this claimed endemic area might well be a carrier of the fungus spores of this disease. However there is not a scintilla of evidence as to where the United States Army used the tents in question nor is there any showing that same were ever in the San Joaquin Valley. Furthermore there is no proof, medical or otherwise, to sustain the statement in petitioner's second application "that he is now informed that the entire San Joaquin Valley is noted for an infestation of the fungus that produces this disease, and that the area in and around San Bernardino is also infested with the fungus producing this disease." It is of course a geographical fact of which we take judicial notice, that San Bernardino lies on the coastal plain east of Los Angeles and is a considerable distance from the San Joaquin Valley.
At the Commission's request, Henry N. Doyle, Industrial Hygiene Consultant of the Sanitary Engineering Division of the State Department of Health, aided by Dr. [69 Ariz. 305] Oscar Sussman, a bacteriologist, of the same Department, on November 10, 1947, took five dust samples from these tent covers, allowing, so Doyle said, "the liberated dust to fall on an exposed petri dish. These petri dishes contain the necessary growing medium for the development of any fungi that might be present in the dust". These plates were then sent to Dr. Charles Smith, of the Stanford University Medical School (an outstanding authority in this field), who reported that none of the cultures sent contained coccidioides although other fungi were found. It is conceded that the fact that specimens taken from the tents in question revealed the presence of no coccidioides fungus approximately one year after the alleged accident is not conclusive proof that there was no contamination at the time the applicant handled this shipment, however, it must be remembered that the burden was upon the petitioner to establish not only that he had "valley fever" which is admitted, but that this condition was caused by an accidental exposure to the fungus or mold causing such infection during the course ...