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Timmons v. Industrial Commission

Supreme Court of Arizona

October 29, 1957

Leo M. TIMMONS, Petitioner,
The INDUSTRIAL COMMISSION of Arizona, Respondent.

Page 936

[83 Ariz. 75] H. S. McCluskey, Phoenix, for petitioner.

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

UDALL, Chief Justice.

Review by certiorari of an award of the Industrial Commission. The issues presented are the claimed inadequacy of compensation allowed; the matter of attorneys' fees and procedure questions.

Statement of Facts

Petitioner, Leo M. Timmons, on March 5, 1953, admittedly sustained multiple injuries by an accident arising out of and in the course of his employment as a truck driver with Fannin's Gas & Equipment [83 Ariz. 76] Company. The Industrial Commission of Arizona, the insurance carrier, promptly assumed jurisdiction by holding the claim to be compensable and it was treated as an 'odd lot' or unscheduled injury. Petitioner subsequent to the date of injury was allowed compensation for temporary disability in the aggregate sum of $7,754.84, in addition to which he was furnished hospitalization and other accident benefits.

The principal injuries suffered by the 43-year-old petitioner were a compression fracture of the 8th and 12th thoracic vertebrae, possibly a slight injury to the 1st and 2nd lumber vertebrae, coupled with a bruise and sprain of the left hip. The injured man was promptly hospitalized and his upper body put in a cast. In due time the fractured vertebrae healed, the cast was removed and he had since worn a brace.

No useful purpose would be served in attempting a seriatim review of the voluminous record presented in this case. It would only create confusion and leave the reader in a haze for it is needlessly verbose. Respondent correctly states that the proceedings had before the Commission constituted a legal marathon.

Medical History

It manifestly appears that during the more than three-year interval-between the date of injury and the final award-the petitioner was furnished the very best of medical care. In all a dozen or more of the 'top flight' doctors of Phoenix-each a specialist in his particular field-performed some service in connection with the various treatments administered. At different times, four separate medical boards were appointed by the Commission to examine petitioner and avaluate his record. In each instance the doctors were unanimous in their findings and recommendations and Dr. Hartman, his regular physician, agreed with their conclusions.

As early as December 18, 1953, the first consultation board found that the patient 'was making satisfactory progress', and with respect to the back they recommended the partient 'should carry on exercises at home under the occasional supervision of his attending physician.' It was further their view that 'The patient should, shortly after the first of the year, be able to return to light work.' The second consultation board, on April 2, 1954, made these comments:

'This patient may safely return to his regular work at this time. It is realized that he will have some complaints of back pain in the fracture sites which may persist for several months.

'As a result of his injury of March 5, 1953, we feel he has sustained a 15% general physical functional disability.

'No further treatments or examinations are necessary since the only treatment[83 Ariz. 77] he needs to rehabilitate himself is active exercise which can best be accomplished by returning to some form of gainful occupation.' (Emphasis supplied.)

Based upon this report the Commission, on April 23, 1954, found petitioner's condition to have become stationary and it made an award for temporary disability pending determination of loss of earning capacity. The petitioner was ordered to make a sincere, honest and conscientious effort to obtain light work and report his earnings therefrom.

Page 937

A petition for rehearing was filed, the basis of which was that counsel insisted on his right to cross-examined the doctors who signed said report. This was granted and later a third medical consultation board was convened. These doctors, under date of September 17, 1954, stated that in view of changes noted in the lumber region they felt a more intensive study of the case should be made by Dr. George McKhann before final evaluation was made. This doctor, who specializes in internal medicine, rehospitalized petitioner and with the aid of laboratory tests and x-ray films made a most thorough study of the man as a whole in an endeavor to find the cause of the subjective complaint that he still suffered constant pain and was unable to do even the lightest work. He suspicioned a low-grade infection but was unable to verify this or find any other objective reason for such complaints. Thereafter, on January 14, 1955, a fourth medical board convened. These four doctors: Eisenbeiss, Haines, Steelman and James R. Moore, after again carefully reviewing the whole record, made these comments:

'It is felt this patient's condition is stationary, that his symptoms are attributable to the injury and the only injury is that of a compression fracture of T-12 and a ...

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