[84 Ariz. 265] Neal T. Roberts, Phoenix, for petitioner.
Donald. J. Morgan, Phoenix, for respondent, John R. Franks, Robert K. Park, and James D. Lester, Phoenix, of counsel.
UDALL, Chief Justice.
Kenneth Wayne Sheridan has brought before us for review an award of the Industrial Commission of Arizona--hereinafter after termed respondent or the Commission--denying his claim for compensation. Petitioner, at the time in question, was employed by E. R. Brunk, d. b. a. Brunks Furnishings, who carried workmen's compensation coverage with the State Industrial Fund. The employer makes no appearance.
By its first award the Commission found in effect there was insufficient evidence 'carrying conviction' to establish the fact that petitioner suffered an injury by accident arising out of and in the course of his employment. A rehearing was granted where the facts were more fully developed, whereupon the Commission reaffirmed its previous award denying compensation. We issued certiorari to test the validity of this finding and award.
While we have held that the identical finding used here, being couched in the words of the statute, if sustained by the record is legally sufficient to uphold a noncompensable award, see Bragg v.
Industrial Commission, 71 Ariz. 37, 223 P.2d 180; still it is difficult to discover from respondent's brief specifically wherein the proof fails to establish a compensable claim. Basically we are not here dealing with what is normally termed 'a conflict of evidence' case; if we were the award would necessarily have to be affirmed.
The petitioner's sole assignment of error is that the Commission erred in failing to award him compensation, for the reason that the only evidence before the Commission conclusively shows the petitioner suffered an injury by accident arising out of and in the course of his employment within the meaning of the Compensation Act.
The law is so well established in this jurisdiction, as to require no citation [84 Ariz. 266] of authority, that the burden is on claimant to affirmatively show, by a reasonable preponderance of the evidence, that he is entitled to compensation. Furthermore the Commission is not required to disprove such a claim.
With the above rules as guide posts let us examine the component parts of the Commission's finding, viz.:
'4. That said applicant did not sustain an accident arising out of and in the course of his employment * * * and therefore any personal injuries claimed in the premises are not compensable * * *',
In order to see what is lacking in the proof submitted. Fortunately the record presented is short, only 21 written instruments, plus a 42-page reporter's transcript containing the testimony of petitioner, a fellow employee, and one of the co-owners of the business.
The record conclusively establishes that petitioner, aged 52 years, was hired by 'Brunks' on January 5, 1957, as a 'washing-machine repairman' at a weekly salary of $85, and that he was in their employ at the time of the injury here in question. The petitioner so testified at the hearing as well as by filing his workman's report of injury. This is confirmed both by the employer's first report of injury (record No. 1) as well as the subsequent testimony of Arlene Brunk, co-owner. Respondent makes no claim to the contrary.
Accident and Injury.
Was there an accident arising out of and in the course of petitioner's employment resulting in an injury to petitioner? Petitioner was alone at the time of the accident. He testified it occurred as follows:
'Q. And Kenneth, how did the injury occur? A. I was moving an automatic washer (wrighing 280 #) off the test there, I had just repaired it and I used the dolly they had out there, you have to hold one foot against the wheel to keep it from rolling back and it hit on something and rolled. handle and grab hold of the inside, the top, so when you let it down again it won't cut your fingers, and practically your whole body is off the floor at that time and when my left foot came down it hit on smething and rolled.
'Q. And then what happened? A. Well, by the time I got stopped I was almost under the washer and I felt kind of a tugging on my back, it did not hurt so much right at the time but the longer ...