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Cross v. Industrial Commission

Supreme Court of Arizona

November 20, 1956

Rufus T. CROSS, Petitioner,
The INDUSTRIAL COMMISSION of Arizona and William E. Rauh, Respondents.

Silver, Silver & Ettinger, Tucson, for petitioner.

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

WINDES, Justice.

Certiorari to the Industrial Commission of Arizona to test the validity of a final award of the commission denying compensation to Rufus T. Cross. Petitioner was employed by respondent William E. Rauh as janitor and dishwasher from September 20, 1954, to October 11, 1954. The evidence[81 Ariz. 223] indicates that during this period he bumped his head two or three times on a shelf over the sink. According to the employer's testimony, during this period of employment petitioner complained of having a cold in his eye. Upon termination of his services, he went to the hospital at Davis-Monthan Air Base. The doctor in charge of the hospital called in Dr. Sherwood P. Burr, Jr., an eye specialist, who

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examined petitioner. The commission having initially denied compensation, rehearing was granted at which Dr. Burr was sworn and testified. The initial award was affirmed.

A petition for second rehearing was filed for the purpose of submitting additional medical evidence through Dr. Jack Klein, an eye specialist. This petition was granted and the commission appointed a board of medical examiners consisting of Drs. Paul E. McFarland, John S. Aiello and H. F. French for the purpose of examining petitioner and reporting to the commission. Dr. Klein testified at the second rehearing. The board of examiners filed its report and no request was made for their oral testimony. After hearing the testimony of Dr. Klein and receiving the report of the board of examiners, the commission again affirmed the previous findings and award to the effect that petitioner had a detached retina of the left eye which was not causally related to or contributed to by any alleged personal injury by accident arising out of and in the course of his employment and denied compensation.

The evidence fairly shows that petitioner bumped his head during the course of his employment and that thereafter it was discovered that he was suffering from a detached retina and blindness in his left eye. Whether there is a causal relationship between the accident and the detached retina is a question that must be answered by the expert medical evidence. Petitioner contends that this evidence without contradiction shows that the accident caused or contributed to the detached ratina and the resulting blindness in his left eye and the commission, therefore, is required to allow compensation.

Dr. Burr testified extensively. We believe from reading his entire testimony that he never testified that in his opinion the accident caused or contributed to the injury. His final testimony was as follows:

'Q. Doctor, assume that a patient comes to you and tells you that during a three week period he has bumped his head five or six times, and that approximately three weeks after bumping his head for the initial time, he developed running eyes, painful eyes, but that he does not notice any loss of vision until told that he had a loss of vision by you as the doctor that examined him. Would you say that during that three week period of time that [81 Ariz. 224] he was bumping his head, that he did not have a loss of vision, or would you say that from that history in all probability he was suffering from a loss of vision throughout that total period? A. I can only answer that by saying it is quite possible he had no vision in the eye all that time and didn't honestly know it. It is just as possible that his vision started to disappear after the first blow. I mean, we are theorizing on something I am in no position to answer. I can come along with this, which I have said before. The extent of the detachment that he had at the time I saw him, the extent of the detachment, by that I mean he had a massive detachment, and the amount of pain and discomfort he had, from a medical standpoint would imply he had the detachment quite some time. That is about the only thing I can say, and even that isn't foolproof.

'Q. By quite some time, what do you mean? A. He could have had it several months before he bumped his head working in the bakery. That is a possibility. I have only said that the pain he had and the extent of the detachment would imply. That is all.'

He also stated that with a predisposition to retinal detachment the bump could possibly cause it; that the bump could possibly cause it without predisposition; that it was possible that he would have had the detachment without a bump, i. e., it could have been spontaneous, and that it is possible he had the detachment before his employment. The doctor then testified:

'Q. You, therefore, have four or five different possibilities? A. That is right. That is a fair way to approach

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the situation, and as I say it is too bad that you might say that I wasn't originally ...

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