[87 Ariz. 191] Udall & Udall and Paul G. Rees, Jr., Tucson, for petitioner.
James D. Lester, Phoenix, John R. Franks, Donald J. Morgan, Robert K. Park, and Frances M. Long, Phoenix, of counsel, for respondent Industrial Commission.
YALE McFATE, Judge.
The petitioner, Roy Lee Murray, Sr., on February 7, 1955, while employed as a cook by respondent B.P.O.E. No. 385 (Elks Club at Tucson), slipped on an ice cube and fell, injuring his lower back. He was first attended by Dr. E. J. Nagoda, who sent him to the hospital on April 1, 1955. About May 17, 1955, at Dr. Nagoda's request, he was examined by Dr. Stanley S. Tanz, orthopedic surgeon. Dr. Tanz diagnosed a severe lumbosacral sprain, with possibility of injury to the lumbosacral disc, prescribed medication for pain, back brace, and other conservative treatment. A few days later, petitioner was discharged from the hospital and continued with treatment at home. He [87 Ariz. 192] was able to get up and around the house, but was unable to do any type of work because of limitation caused by back pain. He failed to respond to treatment and a myelogram was made. His pains became more severe.
On October 4, 1955, he was examined by a medical board consisting of Dr. Nagoda and three orthopedic surgeons, Doctors Cortner, Tanz and Dixon. At that time, petitioner's medical history indicated that he had felt no relief from the back pain since the injury, although prior thereto he had never experienced any trouble with his back. The board concluded that 'Despite the constant defect found in the myelogram, it is very difficult at this time to evaluate how much symptomatology is based on organic disease and how much is based on functional overlay.' 'Functional overlay' or 'functional symptoms' were defined by Dr. Tanz as those symptoms for which the doctor can find no organic basis, such as pain which would be throughout a limb and which would not follow a particular nerve route.
The medical board recommended that petitioner be examined by a neuropsychiatrist, and he was accordingly referred to Dr. Lindsay E. Beaton, who found, among other things, as follows:
'From a psychiatric standpoint, it seems very evident that this man does have a diagnosable hysteria. However, there are neurologic findings in the legs, a positive myelogram, and such very suggestive signs as weakness of the extensor hallucis longus and a paradoxical straight leg raising sign. It seems to me therefore probable that the man's sciatic pain is of organic origin and he may very well have a protruded intervertebral disc * * *.'
Dr. Nagoda concurred in the foregoing findings.
On March 5, 1956, petitioner was further examined and evaluated by the Industrial Commission Medical Advisory Board in Phoenix. This board found petitioner was afflicted with a 'gross psychiatric disorder,' recommended surgery for removal of a protruded intervertebral disc, and a lumbosacral fusion, and stated its opinion that 'even with ideal surgical treatment, there may be residual functional symptoms.'
On April 26, 1956, petitioner was operated on by Doctors Fonseca and Tanz. A herniated disc was removed and the lumbosacral joint fused. On the following day, after a cottonoid sponge was reported missing, the wound was re-opened and re-explored for the missing sponge, but none was found.
Dr. Tanz, on September 17, 1956, requested the patient be again examined by the Medical Advisory Board at the earliest possible date; that he had been a very difficult psychological problem. A medical advisory
board consisting of Doctors Tuveson, [87 Ariz. 193] Findlay, Hastings, Saba and Beaton examined petitioner on November 5, 1956, and reported that the patient complained of numbness and burning pains in the right thigh, but found these complaints were purely functional and that 'apparently, all his anxiety has been converted into hysterical somatic symptomatology.' The board concluded that the fusion was quite stable and '* * * there is no reason why the patient could not become more active, even to the point of returning to some form of gainful occupation which would not involve heavy lifting or straining. He should then be seen by a group of consultants for final evaluation and disability rating in three months following such a period of rehabilitation.'
The Commission, on November 19, 1956, ordered petitioner to make a sincere, honest and conscientious effort to obtain light work of such nature as he was physically capable of performing and which he was competent to perform.
On February 15, 1957, petitioner was examined by Doctors Tanz and Cortner, orthopedic surgeons, who concluded that petitioner had sustained a 15% general physical functional disability, and that there existed a severe overlying hysteria. These doctors noted that probably the patient would not be satisfied with a settlement based on 15% disability, but that they could find nothing objectively to warrant a greater degree of disability rating.
Dr. Tanz testified at a hearing on July 15, 1957, that various attempts were made to rehabilitate petitioner by way of exercises, increased activity and light work, but such attempts failed because of petitioner's functional, emotional and subjective symptom complex; that with proper rehabilitation petitioner could return to work and do heavy lifting, if it were not for his functional overlay and emotional attitude toward his injury and physical condition. On August 22, 1957, the Commission rendered its decision and findings, in effect finding that petitioner sustained a 15% general physical functional disability, and a 34 1/2% loss of earning capacity due to his injury.
Timely protest and petition for rehearing was filed by petitioner contending among other things that he was not mentally able to perform any duties incident to gainful employment.
On May 1, 1958, The Industrial Commission, after rehearing, rendered its decision and made findings and award for unscheduled permanent partial disability, affirming its prior finding of 15% disability and 34 1/2% loss of earning capacity, and finding further that he was able to perform the duties of a watchman, and awarded him $62.77 per month for permanent partial disability, pursuant to subsections C and D, A.R.S. § 23-1044.
The Commission made the following additional specific findings:
[87 Ariz. 194] 'That in determining that the applicant has a reduced monthly earning capacity attributable to his injury by accident, this commission has fully considered the following facts, or additional findings:
'(A) That applicant's occupational history consists of farming, carpenter work, restaurant operator and cook.
'(B) That applicant was 47 years of age at time of his injury by accident on February 7, 1955.
'(C) That applicant has no previous disability.
'(D) That applicant's 15% general physical functional disability is manifested by the objective signs of two operative scars and decreased ankle jerks; that the applicant has multiple subjective complaints which have no organic basis; that the applicant suffered from a psychoneurosis or hysterical reaction which was not produced or aggravated by applicant's said accident or injury sustained therein, and which would not prevent the applicant from performing the duties of a watchman.' (Italics supplied.)
Petitioner, by certiorari, seeks to set aside the findings and award on the ground that
the uncontradicted medical evidence proves that an existing psychoneurosis or hysterical reaction was produced or aggravated by the Industrial accident sustained, but nevertheless, was omitted from the Commission's consideration and is not reflected in its award, contrary to law.
At the outset, we are met with the contention of the Commission that the award includes disability resulting from the functional overlay. There is no justification for this conclusion. The record shows clearly that the Commission determined that none of petitioner's disability due to mental disease was compensable. It specifically found that such disease was neither produced nor aggravated by the accident or the injury. Dr. Beaton testified as follows:
'I am sure that fifteen percent physcal disability took into account only his back, that is, the physical findings in his back and did not take into account the mental or hysterical findings. And that Dr. Tanz and Dr. Cortner believed that because of his injury and because of subsequent surgery with the fusion that he had a fifteen percent disability. It is generally felt--I say this from having been on many of ...