Rehearing Denied Dec. 22, 1953.
[76 Ariz. 188] Leonard S. Sharman, Phoenix, for petitioner.
Donald J. Morgan, Phoenix, John R. Franks, Prescott, Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel, for respondent Industrial Commission.
This cause comes to us on certiorari from an award of the Industrial Commission denying compensation to the widow of V. E. Vukovich, deceased.
The facts are that deceased went to work as a laborer for Farmer & Godfrey Construction Company on July 11, 1950. The employer was engaged in the construction of homes in a new subdivision which had been carved out of a citrus grove northeast of Phoenix. According to the weather bureau reading at the Phoenix airport the temperature increased from 90 degrees on July 10 to 110 degrees on July 12. Deceased had worked during the day of July 12 in assisting various carpenters until the last hour or so immediately preceding quitting time at 4:30 p. m. During this latter period he assisted in unloading a truck load of lumber on the premises.
Mr. Vukovich apparently started to drive away from the premises on the way home and drove his car from the rear of one of the houses to the front thereof where it was observed by Mr. Goldfrey, foreman on the job, about 4:40 p. m. The motor was stopped but the switch was still on. Mr. Vukovich was sitting in the car semiconscious. Dr. Frank J. Hunsik was immediately summoned. In a letter in evidence here written to Mr. Sharman, counsel for petitioner, he stated that upon his arrival he found Mr. Vukovich unconscious in his car. He said:
'* * * His blood pressure was 80/40; pulse 72, full and strong, but progressively became weak and thready. He had an axillary temperature of 104 degrees. The patient was rushed via ambulance to Good Samaritan Hospital where he was given intravenous infusions, blood plasma, oxygen and alcohol sponge baths. Patient expired at 5:00 P.M. Diagnosis was acute heat stroke.
'In my opinion the cause of death was a heat stroke which was due to over-exertion on a hot day.'
An autopsy was performed by Dr. Harold Wood who reported to the commission that all indications were consistent with death from acute heat stroke and no evidence of pre-existing disease.
Vukovich was a man about 54 years old and weighed around 200 pounds. He had not been accustomed to manual labor for several years. The commission denied compensation to petitioner upon the ground that deceased did not sustain a personal injury [76 Ariz. 189] by accident arising out of and in the course of his employment. Petitioner assigns this as error and asserts that it is contrary to the law and the evidence.
There is no dispute as to the facts surrounding the death of decedent or that his death was the result of a heat stroke. Narrowing it down, the question is whether the heat stroke suffered by decedent under the above related facts is an injury by accident and therefore compensable. Counsel for the commission states in his proposition of law No. 1 that:
'Heat stroke (sun-stroke, heat exhaustion, heat prostration) may be 'an accident' within the Workmen's Compensation Act but is not compensable as such unless it is shown that an employee is more exposed to injury thereby than others not so engaged.'
An examination of the cases cited by counsel in support of this proposition of law convices us that it is a correct statement of law.
In the 'Law of Workmen's Compensation' by Arthur Larson published in 1952, Vol. 1, p. 531, Sec. 38.40, we find the statement that:
'* * * A definite majority (of courts) hold that when the usual conditions of his employment lead to claimant's suffering frostbite or sunstroke, the injury is accidental. * * *'
The author cites many cases in support of this proposition among which is the case of L. W. Dailey Const. Co. v. Carpenter,114 ...