Snell & Wilmer, Perry M. Ling, Phoenix, for petitioner.
John R. Franks, Phoenix, for respondent, The Industrial Commission of Artizona, (Donald J. Morgan, and Robert K. Park, Phoenix, of counsel).
PHELPS, Chief Justice.
Petitioner, employer-defendant, seeks by way of certiorari to have this court set aside an award of the Industrial Commission made on the 30th day of April, 1954, denying petitioner's application for a rehearing and affirming its amended findings and award made and entered in said proceeding on March 29, 1954, in which it found that decedent George Gustin, husband of claimant, suffered an injury on [78 Ariz. 189] June 11, 1953, by accident arising out of and in the course of his employment from which he died the same day and awarding claimant compensation therefor.
The facts will be more fully developed hereafter in this opinion as it will be necessary to analyze the evidence in the case in determining whether the findings and award of the commission can be sustained.
Petitioner has presented no assignments of error but bases its claim upon three propositions of law, first, that routine exertion in the course of employment does not constitute accidental injury; second, that death from heart condition is not compensable under our compensation act unless it is proved that it was precipitated by some accidental injury as its proximate cause; and third, that the findings of the Industrial Commission are to be given the same consideration as those of a jury or a trial judge, and when there is reasonable evidence to support an award or reasonable men might draw either of two inferences from the fact, the commission's findings must be sustained.
We agree with propositions of law Nos. 2 and 3 and with some reservations, accept proposition of law No. 1 as fairly stating the law. It cannot be said, however, to apply in every case. For example, in Vukovich v. Industrial Commission, 76 Ariz. 187,
261 P.2d 1000, 1002, we quoted with approval from Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 520, 6 A.2d 396, 401, the following:
"* * * The requirement that the injury or death arise by accident, under our statute, is satisfied if the client discharged the burden of proving that the condition complained of, i. e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred."
The Vukovich case involved a claim for compensation for the death of decedent resulting from a heat stroke and we held in that case that a heat stroke was caused by an accident which arose out of and in the course of employment of decedent; that the decedent in unloading lumber from a truck was more exposed to injury by heat stroke than others in the locale. We expressly held that the injury arose by accident arising out of and in the course of his employment. This view on that subject is supported in many jurisdictions. In Alexander Orr, Jr., Inc., v. Florida Industrial Commission, 129 Fla. 369, 176 So. 172, 173, the court said:
"If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute."
An examination of the New Jersey and Florida statutes indicate that they are essentially[78 Ariz. 190] the same as our section 56-931, A.C.A.1939.
The rule laid down in In re Mitchell, 61 Ariz. 436, 150 P.2d 355, in which the decedent met his death by inhaling carbon tetrachloride as it evaporated from use in cleaning contracts or terminals in switchboard relays of the Mountain States Telephone and Telegraph Company by whom he was employed, occurred when he was engaged in the routine performance of his duties as such employee. We held in that case that the injury was the result of an accident arising out of and in the course of his employment.
As we understand the position of petitioner in the instant case it is claimed that although the injury arose during the course of his employment it neither arose out of his employment nor occurred by reason of an accident. We are inclined to the view that petitioner has not given due weight to the testimony of a number of witnesses including that of Dr. Maurice Rosenthal, several employees of petitioner, and Judge Al Flood of West Phoenix Precinct Justice Court and ex officio coroner.
A post mortem examination was performed by Dr. Daniel Condon on June 12, 1953, and witnessed by Dr. Rosenthal, a report of which was made by Dr. Rosenthal on June 22, 1953, and filed with the Industrial Commission on July 6 following. According to this report the internal examination of decedent disclosed a congestion and pulmonary edema of the lungs associated with an enlarged heart weighing twice the normal weight and the coronary arteries presented a rather marked degree of arteriosclerotic change with narrowing and occlusion of some of the arteries. There was some congestion of the liver. The kidneys showed a severe congestion and the brain showed a slight congestion. It was said no other lesions of significance were found. The conclusions reached by Dr. Rosenthal were that the findings were consistent with acute myocardial failure associated with ...