George A. McALLISTER, Petitioner,
The INDUSTRIAL COMMISSION OF ARIZONA, and John W. Tarpley (Tucson Iron Works), Respondents.
Jack T. Arnold, Tucson, and Lawrence Ollason, Tucson, of counsel, for petitioner.
James D. Lester, Tucson, for respondent Industrial Commission of Arizona.
John R. Franks, Donald J. Morgan and Robert K. Park, Phoenix, of counsel.
George A. McAllister petitioned for and was granted a writ of certiorari to review the findings and award of the Industrial Commission denying him compensation. We must determine only one question-does reasonable evidence support the Commission's findings?
Petitioner McAllister sustained a compensable injury to his back as the result of an accident in June of 1954. An orthopedic surgeon operated on him for a herniated disc. During the operation the surgeon found no evidence of a herniated disc, but did remove a congenital anomaly of the fifth lamina which he believed to be the probable cause of the pain suffered by McAllister. On March 29, 1955 the Commission found McAllister's condition to be stationary and that he sustained a 15% general physical functional disability as a result of this accident.
On November 9, 1955 McAllister sustained a second compensable injury to his back as the result of an accident. Dr. Burleigh, an orthopedic surgeon, treated him for this injury. On the following December 17 an x-ray photograph was made of his back in the lumbar area which revealed according to the report of the radiologist, Dr. Keely, a defect involving [83 Ariz. 214] the pars interarticularis of L-5 on the left, some question of the integrity of the pars interarticularis of L-5 on the right, but no definite evidence of spondylolisthesis or slipping. This x-ray plus a two-year history of recurrent back pain and inability to work caused Dr. Burleigh to request permission to fuse the L-5 S-1 articulation. A month and a half later Drs. Beaton, a psychiatrist, Derickson, an orthopedist, and Burleigh examined McAllister in consultation. In their report they did not discuss the x-ray photograph or report, did not discuss the advisability or inadvisability of spinal fuson, but recommended flexion exercises, a lumbo-sacral support, and a myelogram if the flexion exercises aggravated the back. A myelogram was done and after viewing the results and a review of the old x-rays with a Dr. Wilson, Dr. Burleigh felt the patient had a recurrent herniated disc for which he recommended reexploration and removal of the disc and again a spinal fusion if the previously mentioned defect at L-5 were revealed to be quite unstable. In May of 1956 McAllister was examined by Dr. Cortner, another orthopedist, in consultation with Dr. Burleigh. They concluded that he did not have a herniated disc, but did not mention spinal fusion pro or con in their report. Their report reveals that they did
not have before them the December 17 x-ray which showed the defect at L-5 for which Dr. Burleigh had recommended spinal fusion and there is no indication in their report that the report of that x-ray was available for their joint consideration. A month later McAllister was examined by Dr. Neumann, a psychiatrist. He also concluded that he could find no evidence of a herniated disc and that he could not relate any disability to either of the accidents. His report also suggests that he saw only the myelogram and not the December 17 x-ray showing the defect at L-5. McAllister was next examined on July 2, 1956 by the Medical Advisory Board consisting of one neuro-psychiatrist, two orthopedic surgeons, one general practitioner, and two general surgeons. Their report summarized in chronological order most of the reports and letters written by doctors concerned with the case from the first acident in June of 1954. Although included among these summaries are the x-ray and myelogram reports prior to the second injury and also the first letter in which Dr. Burleigh discussed the December 17 x-ray showing the defect at L-5 for which he recommended spinal fusion, the Medical Advisory Board report does not mention any of the x-ray or myelogram reports made since the second injury. Its report merely states that the x-rays were reviewed and lacks any indication of which x-rays were reviewed, and most particularly fails to indicate that the Board saw the December 17 x-ray which reveals the defect for which spinal fusion was recommended.
[83 Ariz. 215] After the summaries, a transcript of McAllister's testimony of his history and complaints, and a description of the Board's seemingly thorough physical and neuropsychiatric examination, the Medical Advisory Board report concludes:
'Comments: It is the opinion of the undersigned examiners that the patient's condition is now stationary and that no further treatments or examinations are indicated.
'There is nothing in today's examination to indicate any nerve root irritation such as would be occasioned be a protruded intervertebral disc nor do we feel a spinal fusion is indicated. There is nothing in today's examination to indicate the patient has more than the 15% general physical functional disability that was ascribed on March 29, 1955.'
Before this report was filed with it the Commission made findings that McAllister's condition had become stationary and that he sustained a 15% general physical functional disability as the result of the second accident. McAllister petitioned for a rehearing. After the Medical Advisory Board report had been filed, the Commission corrected its previous findings by entering new findings to conform to the conclusion of that report. In its new findings the Commission changed the 15% to no permanent partial disability as a result of the injury from the second accident after quoting the conclusion to that effect in the Medical Advisory Board report.
McAllister again petitioned for rehearing. A rehearing was granted as a result of which Dr. Burleigh testified before a referee in Yuma, and Drs. Beaton and Cortner testified before a referee in Tucson. Dr. Burleigh reiterated his belief that spinal fusion should be performed because of what he diagnosed as an unstable back caused by the congenital defect at L-5 shown on the December 17 x-ray. He stated that he believes spinal fusion is indicated because of the continuing complaints of back pain even though the x-ray did not reveal definite evidence of spondylolisthesis or slipping of one vertebral body over another. One of his comments suggests that some of the x-ray films have disappeared. Dr. Beaton, because he is not a specialist in radiology or orthopedics, refused to comment on whether any significance was given by the Medical Advisory Board to statements from the December 17 x-ray report. He did state that the two orthopedic members of the Board reviewed the x-rays but he did not say whether the December 17 x-ray was among them. He stated that he concurred in the conclusion of the Medical
Advisory Board, that neither neurologically nor psychologically would he have been inclined to recommend any surgery, but that he would not interpose a neurological [83 Ariz. 216] or psychiatric objection to surgery in the case. Dr. Cortner testified that he always wants to look at the x-ray itself rather than just a report before rendering any opinion. Nevertheless he was shown a copy of the December 17 x-ray report and was asked to explain the meaning of certain statements. In the course of his testimony he stated that most orthopedists do not think that the defect itself should cause any disability if there is no slipping, that there can be a great deal of disability though only a little slipping, that slipping can occur at any time but the defect must be on both the right and the left before slipping can occur. Dr. Cortner also stated that practically anybody who has undergone surgery for a suspected herniated disc can be said to have an unstable back which causes pain and that this could account for the pain of which McAllister complains.
At the rehearing McAllister introduced the testimony of two disinterested witnesses who were familiar with his attempts to work at two separate jobs since the second accident. Both testified that from their observations he was unable to perform the jobs effectively because of what he termed severe back pains. The testimony of McAllister and these two witnesses is to the effect that he made a sincere effort to seek do so because of severe back pains. We and ...