[78 Ariz. 125] Richard S. Gilmore, Glendale, for petitioner.
John R. Franks, Phoenix, Donald J. Morgan and Robert K. Park, Phoenix, of counsel, for respondent Industrial Commission.
PHELPS, Chief Justice.
Petitioner Oren Bradshaw seeks by certiorari to have the award of the Industrial Commission made on February 24, 1954, set aside. There are no specific assignments of error anywhere in the record but the burden of petitioner's argument seems to be that the award is not supported by the evidence and is contrary thereto.
On March 26, 1953, while petitioner was in the employment of the State Highway Department he sustained an injury to his lower back in what is described as the lumber area. The injury was reported to the Industrial Commission and on April 28 of that year it found that the injury occurred by accident arising out of and in the course of his employment and it awarded accident benefits to petitioner but found that he was not entitled to compensation upon the ground that he was not disabled for work in excess of seven days and that he suffered no physical disability as a result of said accident.
Petitioner was treated by Doctor F. P. McCann, D. O., of Peoria, who diagnosed his injury as 'acute traumatic injury to low back.' The doctor treated him by tape strapping, RX diathermy, massage and exercise, with satisfactory results. He discharged petitioner as cured on March 30, 1953, with the report that there was no physical or functional impairment of any kind as a result of the injury.
Petitioner returned to his work upon his discharge by Doctor McCann. He testified that his back continued to 'bother' him all the time. He was given light work by his boss, Mr. J. A. Cardon (this is corroborated by Mr. Cardon), and he stated by favoring his back he was able to get by pretty well until around August 10 when his hip and leg 'started bothering' him. He stated his back 'bothered' him when he did any heavy lifting or if he strained himself 'just right'. He especially noticed an increase of pain in the lower back in August after hauling and helping to unload a truck load of cement. The pain of which he complained was at the same place in the back that it was at the time of his injury of March 26. Because of the peculiar situation here involved, we deem it best to specify dates on which the material events took place.
Petitioner continued to work until September 5 when he said because of severe pains in the lower back he had to take sick leave. Around August 20 petitioner began to receive treatments from Doctor McCann, at first every other night and later every night after he got off work until he was referred by Doctor McCann to Doctor H. F. Steelman, M.D., on September[78 Ariz. 126] 21, 1953. This referral was made according to Doctor McCann, because of the fact that petitioner had not responded satisfactorily to conservative treatment given him.
On September 22, 1953, Doctor Steelman wrote a letter to Doctor McCann giving him a full report of the result of his examination of petitioner, a copy of which report was filed with the commission on October 17, 1953. In this report, among other things, he stated he found:
'1. Degenerative disc changes between L-5 and S-1;
'2. Slight narrowing of disc space between L-4 and 5, but not significant of marked disc damage at this level; and
'3. Lumbar-sacral spine otherwise normal.'
On October 24 petitioner filed with the commission a petition and application for readjustment or reopening of claim AK 6465 involving his injury of March 26. In this petition and application he states:
'On 3-26-53 was injured while working, was laid off, but went back to work after one week, when I thought I was able to work-went back to work too soon, so had more trouble with my back.
'While hauling cement about the 10th of August, 1953, hurt my back again, but continued to work until Sept. 5th, 1953. Was under Doctors' care from Sept. 5th,
1953, to Oct. 7th, 1953, when I was sent to Hospital.
'Reason for not filing for compensation was that I thought I would soon be able to go back to work. Am now confined to bed at home with leg stretch.
'Oren M. Bradshaw.'
On October 28, 1953, Doctor James R. Moore, M.D., medical advisor for the commission on specific request by it examined the file in the case and gave as his opinion that:
'The records indicate this man had leg pains for eight weeks, the onset being without trauma, that he had back trouble previously five years ago, with illness for two years. The records do not indicate that the present condition is due to the accident of March 26, 1953.'
Thereupon on November 2, 1953, the commission made and entered its findings and award based on Doctor Moore's report, that there was insufficient medical evidence that applicant was suffering any new additional or previously undiscovered disability attributable to said injury of March 26, 1953 and affirmed its previous award of April 28, 1953.
In due time petitioner filed his application and petition for rehearing and requested an opportunity to cross-examine Doctors James R. Moore and H. F. Steelman and to examine Doctor E. P. McCann, family physician of petitioner. Pursuant thereto [78 Ariz. 127] a rehearing was ordered and on December 29, 1953, a full hearing was conducted at which time all doctors named in the application testified. Petitioner and J. A. Cardon, 'boss', also testified. At the close of the hearing the matter was submitted to the commission for consideration and decision and on February 24, 1954, it rendered its decision, findings and award affirming its finding and award of November 2, 1953. It is this award that petitioner seeks to set aside.
It will be necessary to carefully examine the evidence in the case in order to determine the questions presented. If there is a conflict in the evidence on a material issue of fact or if there is substantial evidence to support the finding and award of the commission even in the absence of conflict in the evidence we are bound thereby and may not disturb such award. Blasdell v. Industrial Commission, 65 Ariz. 373, 181 P.2d 620; West Chandler Farms Co. v. Industrial Commission, 64 Ariz. 383, 173 P.2d 84; Davidson v. Industrial Commission, 72 Ariz. 314, 235 P.2d 1007.
As above stated the award of April 28, 1953, was based exclusively upon the above report of Doctor James R. Moore to the commission on October 28, 1953, in which he stated:
'* * * The records do not indicate that the present condition (of petitioner) is due to the accident of March 26, 1953.'
In our opinion this statement conflicts with the testimony of Doctors McCann and Steelman relating to the same subject matter and unless the testimony of Doctor Moore at the hearing of December 29, 1953, either refutes or materially modifies that statement the finding and award of the commission must be sustained.
In his testimony at the hearing Doctor Moore stated that he had never personally examined petitioner but, at the specific request of the commission he gave it the opinion above quoted based upon a review of the files then in the case. He then continued:
'* * * and I believe those observations were confirmed in the testimony that was given here this morning. A final opinion would not be one now for me to make, but the Commission, I believe. In other words, the records do not indicate that the present condition is due to the accident of March 26th, '53. In other words, 'the records do not indicate that the present condition is due to the accident of March 26th, '53.' That statement was ...