Award set aside.
Charlie W. Clark and Ed. Brash, of Phoenix, for petitioner.
Robert E. Yount, of Phoenix, (Robert W. Pickrell, Phoenix, of counsel), for respondent, Industrial Commission of Arizona.
De Concini, Justice. Stanford, Phelps and La Prade, JJ., concur. Udall, Chief Justice (dissenting).
De Concini, Justice.
[73 Ariz. 357] This case is before us on certiorari to review an award of the Industrial Commission.
Petitioner, W. E. Vinson was injured on October 30, 1947 by an accident arising out of and in the course of his employment. The employer, Ed Bridgeman (Bridgeman Construction Company), was insured with the respondent commission. At the time of his injury, Vinson was 35 years of age, in good health, with no previous disability, and was earning a salary of $ 306.25 per month as a truck driver.
The medical records establish that as a result of the accident he suffered a "ruptured lumbar intervertebral disc". Two operations were subsequently performed on the petitioner's spine. The first was in April, 1948 and the second the following year on July 9, 1949. Both operations were for the purpose of making bone grafts and spinal fusions. After the second operation, Dr. M. R. Richter reported, on September 28, 1949, that there was a "well fused third, fourth and fifth and upper sacral segment anatomically aligned in the A. P. and lateral projections."
The patient continued with visits to various doctors, until on August 8, 1950, the commission received the following recommendation from Dr. William B. McGrath, who had given petitioner a neuropsychiatric consultation:
[73 Ariz. 358] "Comment: This man lives alone and is not very intelligent. He has accepted the minor discomforts which are still residual to his operation in a passive fashion and has unconsciously perhaps employed them as his reason for continuing in a dependent and peacefully parasitic existence. He has lost any obvious intention of resuming wage earning and we feel that he would be perfectly content to continue in his present situation for the rest of his life. Actually there is in the physical and neurologic examination not very much evidence of disability at this time. He shows no weakness nor atrophy nor more than 20% restriction in the use of the back and of the lower extremities.
"We do not feel that his grade of intelligence and its accompanying emotional reaction would make him a candidate for ordinary psychiatric treatment of the neurotic passivity. We do feel that he should very soon be rated from the orthopedic standpoint and that it will require coercion to get him back to light work for a period of a month or two, until he can have rehabilitated himself from the muscular standpoint and reaccustomed himself to exertion. Diagnosis: Physical disability with regard to the lower back, amounting to approximately 20% and stationary. Functional loss of tolerance for discomfort and exertion, amounting to the remaining part of his condition which has kept him from returning to the light work for which we feel he is at this time able." (Emphasis supplied.)
Drs. Williamson and Tuveson concurred in the above diagnosis, saying: "* * * we are in full accord with the comments of Dr. Wm. B. McGrath in his examination and report of Aug. 8, 1950. The ...