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Laramore v. Industrial Commission of Ariz.

Supreme Court of Arizona

April 2, 1957

Ray H. LARAMORE, Petitioner,
v.
The INDUSTRIAL COMMISSION OF ARIZONA, and San Xavier Rock and Sand Company, Defendant-Employer, Respondents.

Page 238

[82 Ariz. 101] Ira Schneier, Tucson, for petitioner.

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

PHELPS, Justice.

Petitioner Ray. L. Laramore, by certiorari, has brought before us for review, an award of the Industrial Commission asking that the award, granting him only nominal compensation, be set aside on the grounds that the commission erred: first, in making findings not based upon reasonable and substantial evidence; second, in refusing to consider new and additional evidence.

Petitioner, a man aged 40 years, was employed in Tucson as a welder for the San Xavier Rock and Sand Company. The employer was insured under a policy issued by the commission. On July 19, 1954, while engaged in his occupation as a welder, a truck backed into him, striking him at the base of the skull and knocking him down. His injury was diagnosed by Dr. Juan Fonseca, a neurosurgeon, as a 'typical case of a cervical brachial syndrome.' Dr. Ian Chesser, petitioner's attending physician, testified that this was an injury to the cervical spine rather than the head itself, due to a violent moving of the head on its vertical axis. He further stated that this type of injury manifests itself by changes in the nerve supply to the arm because the origin of the nerve supply to the arm is in the neck. He said the whip lash type injury damaged petitioner's fifth and sixth cervical vertebra causing him to have a [82 Ariz. 102] 'severe spasm of his cervical muscles' in his right whenever he put forth any muscular effort, such as lifting, stretching or working with his head turned to an acute degree. A muscle spasm was described as a full contraction of a muscle due to reflexes which cuts off the blood supply and causes pain. In addition, petitioner suffered headaches from time to time for which traction was prescribed. Doctors Elkins, Schwartzmann and Chesser, by written report, concluded that as a result of his injury the petitioner 'sustained a ten per cent general physical functional disability permanent in nature.'

On November 23, 1955, the commission, without a formal hearing, entered findings and award for an unscheduled permanent partial disability not to exceed ten per cent. The commission found that petitioner had not sustained any loss of earning capacity as a result of the accident and that petitioner's average monthly wage, prior to injury was the sum of $484, and that his average monthly post-injury wage was $512.51 from July 1, 1955 to September 23, 1955.

Petitioner then filed an application for rehearing alleging that his post-injury wages were not truly indicative of his earning capacity and that his functional disability actually has affected his earning capacity. On February 9, 1956, the first formal hearing was held in Tucson. At that time petitioner testified that he was a skilled certified welder and that after his injury he had tried various jobs, such as (1) welding rock crusher rolls, (2) operating a concerate sawing machine, (3) operating an electrical hoist for a chimney building outfit, (4) welding thin walled airtight joints (with the aid of an extra helper) and (5) sheet metal welding and installing siding on metal buildings. Petitioner further testified that he was forced to discontinue the concrete sawing machine work and welding jobs because of what the Doctors

Page 239

described as an exacerbation of his symptoms and signs present shortly after the injury. Petitioner further testified that at the time of the hearing he was doing brazing or acetylene welding, with a gas torch, in an assembly operation for $1.39 per hour; that he could probably do the work but that he would have to take time off for traction. In each case he was forced to quit his job and take traction for relief except when employed on the push-button electrically operated hoist which required no exertion at all.

Mr. Lee Renick, a representative of the International Union of Operating Engineers, testified that there is no such classification as a 'light duty welder' in the industry; that operating a concrete sawing machine required a good strong arm to crank the machine and that the rock crusher job required heavy duty welding.

[82 Ariz. 103] Granville Bailey, a sheet metal worker for Davis Air Conditioning Co., testified that he was the lead man on the airtight joint welding job; that petitioner and he did all heavy lifting connected with the job until petitioner suffered a recurrence of his symptoms approximately one week after he began work; that the job required exceptional skill which petitioner possessed and the employer could not procure another expert welder; that in order to keep petitioner on the job he was given an extra mechanic to relieve him from climbing and lifting, and to place and hold the pipe conveniently before him in proper position for welding; that the airtight joint type work of welding thin pipe was an 'unusual job' of welding that only arises every four or five years in the Tucson area.

On March 27, 1956, as a result of the first hearing, the commission amended its findings and award and petitioner was awarded compensation of $26.62 monthly. Findings No. 12 and 13 thereof read as follows:

'12. This Commission finds that applicant is physically and mentally able to perform duties similar to those applicant performed prior to his injury providing applicant avoids duties requiring strenuous physical exertion for which applicant might reasonably expect to earn the sum of $435.60 monthly.

'13. This Commission finds that applicant has sustained a 10% loss of earning capacity and is thereby entitled to an Award for Unscheduled Permanent Partial Disability under Section 56-957(c) and (d), Arizona Code Annotated 1939, as amended (A.R.S. 23-1044s (c) and (d), entitling applicant to the sum of $26.62 monthly until further order of this Commission.'

The pertinent part of finding 14 is quoted below as follows:

'14. That in determining that applicant has sustained 10% loss of earning capacity, this Commission has taken into consideration, in addition to ...


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