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White v. Industrial Commission

Supreme Court of Arizona

March 26, 1957

Clifford Bryan WHITE, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, and Bert A. Gibbs (Douglas-Maintenance Company), Defendant-Employer, Respondents.

Page 251

Ira Schneier, Tucson, for petitioner.

Robert K. Park, Phoenix, for respondent, Industrial Commission, John R. Franks, Donald J. Morgan, Phoenix, and James D. Lester, Tucson, of counsel.

[82 Ariz. 121] PHELPS, Justice.

By certiorari from this court, petitioner White, a journeyman lineman (electrician) seeks a review of the finding and award of the Industrial Commission of July 12, 1956, affirming findings and award made on March 15, 1956, in which it awarded him temporary disability compensation to that date for injuries sustained by accident arising out of and in the course of his employment on October 7, 1954.

It is the contention of petitioner that the commission erred in its findings of fact Nos. 10, 11, 12(e) and 12(f), upon the ground that there is no substantial evidence in the record to support any of them.

The findings of which petitioner complains and the evidence upon which each is based are as follows:

'10. This commission finds that applicant is physically unable to perform heavy duties in his job classification as a journey-man lineman, but is capable of performing duties of a lighter nature requiring the job classification of a journey-man lineman.' (Emphasis supplied.)

Petitioner agrees with the first part of the finding to the effect that he is physically unable to do the heavy duties in his job classification as a journeyman lineman, but claims there are no 'lighter jobs' in that classification. He testified that the work of a journeyman lineman is to set poles, climb poles, string wire, install transformers and anything pertaining to the outside electrical work. The witness Wm. A. West, business manager of Local Union 570 of the Electrical Workers, who has been a journeyman electrician for 38 years, testified that all of the work in the classification of a journeyman lineman is heavy work. West had previously testified that there isn't anything in the electrical business, inside or outside, available that Mr. White could do with his disability unless some big job came along like the one at San Manuel just finished. He said on those big jobs where many men

Page 252

are employed, you could cover up and keep a man on the job when he is working with a crew and looks like he is busy.

We construe his testimony to mean just what he says, i. e., that there are no light jobs in the classification of a journeyman lineman or a journeyman wireman and it is only on big jobs like the San Manuel job that light work is available, and that is done by cover-up methods where a disabled person is given work in a large crew where he appears to be busy, when, in fact, he is not required to perform the duties required of a lineman or a wireman. He testified that big jobs like the San Manuel job rarely occur in this area. He stated he asked the foreman at San Manuel to find something for petitioner to do.

White was first given the job of operating a 'Winch Truck' at San Manuel which was given to him by foreman Allen at the [82 Ariz. 122] request of West. Allen testified a 'Winch Truck' was used only on big jobs in moving equipment spools or reels of wire and other heavy equipment, as well as pulling wire or cable through ducts (or conduits). This operation required the use of feet in shifting clutch pedal, and arms in operation of levers and brings into operation all of the muscles of the body in twisting the body to watch signalman behind him, etc. Allen stated he had to let petitioner go because he couldn't do the work, but stated he later gave him work in the warehouse keeping material separated for distribution to different jobs, but, in order to do this he had to give him a classification other than a journeyman lineman.

Allen also testified that there were no light duty jobs; that if they have a light duty job they have to create it for somebody And he said that was what they did in White's case. They took an able-bodied man in the warehouse, who was a journeyman wireman, and replaced him with White, but in doing so had to give White a wireman classification. This evidence was no where disputed and there is nothing intrinsic in the evidence or extrinsic in the circumstances which casts suspicion upon its veracity. Therefore the commission could not ignore it as they apparently did. Martin v. Industrial Commission, 75 Ariz. 403, 257 P.2d 596. We therefore hold that there was no evidence whatever to support the latter portion (italicized) of finding No. 10 for the reason that there is no light work in that classification. The commission found petitioner to be physically unable to perform heavy duties as a journeyman lineman.

Finding No. 11 and the evidence bearing thereupon is as follows:

'11. This commission finds that applicant is capable of performing duties of a lineman estimator, and other duties of a similar nature not requiring strenuous physical duties for which said applicant would reasonably expect to earn wages equivalent to, and in excess of, the average monthly wage as set forth in Finding No. 5.' (Emphasis supplied.)

Petitioner testified that he had done a little work as an estimator and that he could do that kind of work. The witness West testified that in his opinion White could not do such work because it required a college degree in engineering to do it, thus placing the evidence in conflict on that point. But there is no evidence in the record to support the further finding that petitioner is also capable of performing

'other duties of a similar nature not requiring strenuous physical duties for which said applicant would reasonably expect to earn wages equivalent to, and in excess of, the average monthly wage as set forth in Finding No. 5.'

There is no evidence whatever in the record that there are 'other duties of a similar [82 Ariz. 123] nature' to the work of an estimator, either of a strenuous or light character, in the classification of a journeyman lineman or of any wages petitioner might earn in performing such duties. In fact, the testimony of witnesses that all of the work in the classification of journeyman lineman is heavy tends to refute the fact that such duties exist.

And finally, we consider finding No. 12 to the effect that ...


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