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Scott v. Industrial Commission of Ariz.

Supreme Court of Arizona

May 8, 1956

James A. SCOTT, Petitioner,

H. S. McCluskey, Phoenix, for petitioner.

John F. Mills, Phoenix, for the Industrial Commission of Arizona, John R. Franks, Donald J. Morgan and Robert K. Park, Phoenix, of counsel.

UDALL, Justice.

Certiorari to the Industrial Commission of Arizona, respondent herein. Petitioner, James A. Scott, while in the employ of E. J. Wasielewski Construction Company as a journeyman-carpenter, was injured by an accident admittedly arising out of and in the course of his employment. The Commission assumed jurisdiction and by an appropriate order found the claim to be compensable. Petitioner, being dissatisfied with the final award holding this to be a scheduled injury has, by certiorari, brought the matter before us for review. Respondent, the Industrial Commission, appears as the insurance carrier. There is no appearance by the employer.

The allegations of Par. III of the petition for writ of certiorari-which were admitted to be true by the Commission's response-rather graphically describe both the accident and the nature of the injuries, viz.:


'That on November 5, 1953, said employer had provided a ladder with several rungs missing for the use of its employees; that petitioner, unaware of the defective ladder, attempted to descend from the roof and fell approximately[80 Ariz. 281] 3 feet. He caught a 2X4 brace with his left hand taking his full weight of 190 lbs thereon and thereby injured his cervical spine, neck, shoulder, and left arm. He was 60 years of age and (the accident) also aggravated pre-existing arthritic changes in the neck and shoulder and cervical spine.'

For a period of approximately sixteen months, between the date of injury and the time when petitioner's condition was found to be stationary, he was compensated for either total temporary or partial temporary disability, and in addition thereto was allowed 'accident benefits'. It would seem

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from an examination of the file that petitioner was given the best treatment medical science had to offer; he was hospitalized several times and was either treated or examined in all by thirteen members of the medical profession including orthopedic surgeons. However, according to Dr. Moore he did not satisfactorily respond to treatment, i. e., his condition failed to materially improve. It was not until March 2, 1955, that three medical consultants found his condition to be stationary and no further treatment indicated. Their conclusion was:

'As a result of the injury sustained in the accident in question, we are of the opinion that Mr. Scott has a partial permanent disability which is referred to impaired function of the left upper extremity and is equivalent to approximately a 15% functional loss of the left arm.'

The Commission by its award evidently adopted the consultants' final view that petitioner had suffered a permanent partial disability equal to 15% loss of function of the left (minor) arm; it further determined that this was a scheduled injury and hence allowed him additional compensation therefore in the sum of $203.40 monthly, for a period of seven and one-half months. (For complete loss of function of the minor arm the statute allows compensation for a period of fifty months.) This award is admittedly predicated upon the premise that petitioner suffered but one injury (i. e., to his left arm) which resulted in multiple conditions flowing therefrom. The soundness of this premise is sharply challenged by petitioner.

It seems to us that the crux of this appeal is whether the record sustains the Commission's determination that petitioner's disability from his injuries falls within the classification of 'scheduled injuries' enumerated under Section 23-1044, subsections B. 13 and B. 21, A.R.S.1956. If it does, the award should be affirmed; otherwise it must be set aside.

The issues are succinctly stated in petitioner's opening brief:

'Petitioner contends that his major injuries are to his nerve roots, the [80 Ariz. 282] cervical spine and nerves emerging therefrom, his neck, shoulder, and left arm, and also headaches; that the partial loss of use of his left arm and hand are only one of the results flowing from the major injuries.

'Petitioner contends his multiple injuries are compensable under Section 23-1044, subdivision C, A.R.S.1956, and that compensation for his multiple injuries, which have virtually destroyed his earning power, and capacity to obtain employment, cannot be limited to partial loss of the use of a minor arm under Section 23-1044, subsections B. 13 and B. 21, A.R.S.1956, as the Commission has attempted to do.'

At the outset it should be noted that we are not here confronted with resolving a conflict of evidence under the well established rules of appellate practice. Respondent admits in its brief, 'In the instant case, there is no conflicting medical opinion to be dealt with.' The petitioner had no independent medical witnesses. All of such evidence came from cross-examination of the doctors to whom petitioner had been referred for examination or treatment by the Commission. Having carefully examined the entire record we agree with counsel for petitioner that the evidence from the doctors as to the multiple injuries flowing from the accident stands uncontroverted. These may be briefly summarized as follows: injury to the nerve roots, or central nervous system; aggravation of pre-existing osteo-arthritic changes in the cervical spine; irritation and inflammation of the nerves emerging from the cervical spine due to compression (radiculites); 50% limitation of motion in the neck; limitation of motion and disabling pain in left shoulder ...

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