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Parnau v. Industrial Commission of Ariz.

Supreme Court of Arizona

May 4, 1960

Eva L. PARNAU, Petitioner,
INDUSTRIAL COMMISSION OF ARIZONA, and E. S. Kearns and E. F. Massingle (Food Fair), Respondents.

Rehearing Denied May 31, 1960.

[87 Ariz. 362] Robert E. Yount, Scottsdale, for petitioner.

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James D. Lester, Phoenix, for respondent, Industrial Commission of Arizona, Donald J. Morgan, Frances M Long, Phoenix, Edward E. Davis, Glendale, of counsel.

JOHNSON, Justice.

Petitioner, Eva L. Parnau, sustained a compensable injury in an industrial accident on February 10, 1948. Applicant was operated upon and then seen in consultation by the Medical Advisory Board in March of 1950, as a result of which it was determined that she had sustained a 20 per cent general physical functional disability attributable to her injury. On the basis of a further consultation in December of 1950, which found her condition to be stationary requiring no further treatment, the Commission rendered its final award compensating petitioner for a 25 per cent loss of earning capacity.

Thereafter, petitioner initiated a series of applications to reopen on the basis of a new, additional or previously undiscovered disability, each of which was denied by the Commission on the ground she had failed to present evidence of such undiscovered disability. Finally, on May 22, 1958, petitioner filed her last petition and application for reopening of the award. In support thereof, there was filed a report by Dr. Aidan A. Raney, an orthopedic surgeon of Los Angeles, California.

This petition to reopen was denied, and a petition for rehearing was filed. Formal hearing was held September 29, 1958, at which time medical testimony was taken. On an investigative basis, the Commission then ordered petitioner examined in group consultation on October 17, 1958 by a neurologist, Dr. William B. Helme; two orthopedic surgeons, James Lytton-Smith and W. A. Bishop, Jr.; a psychiatrist, Dr. William B. McGrath and the Commission's medical advisor, Dr. James R. Moore. A report consisting of medical findings and opinions was made, and formal hearing again was held on December 10, 1958, at which time the testimony of Doctors Bishop, Lytton-Smith, Moore and McGrath was recorded.

The Commission thereupon entered its decision affirming its previous findings and award. That final award is the subject of the present certiorari action.

[87 Ariz. 363] At the time of petitioner's injury, § 56-957(c) and (d), A.C.A.1939 was in effect, and not the amending statute A.R.S. § 23-1044, subd. F. We have held that the 1953 Amendment, affecting vested rights, is substantive legislation and can not be accorded retroactive application. Gallo v. Industrial Commission of Arizona, 83 Ariz. 392, 322 P.2d 372. Consequently, the burden lies with petitioner, Hunter v. Wm. Peper Construction Co., 46 Ariz. 465, 52 P.2d 472, to establish that there exists a new and additional disability which was unknown and not considered at the time of the original award. Jastrzebski v. Wasielewski, 82 Ariz. 92, 308 P.2d 937; Harambasic v. Barrett & Hilp & Macco Corp., 58 Ariz. 319, 119 P.2d 932. If petitioner fails to sustain its burden, she is not entitled to a reopening of the award.

It is well settled in this jurisdiction that this Court will not upset the findings of the Commission where there is a conflict in the competent evidence, upon which it based its findings, which is such that reasonable men might differ as to the fact. Jastrzebski v. Wasielewski, supra. Furthermore, it must be borne in mind that unless the result of an industrial accident is one which clearly is apparent to ordinary laymen, such as the loss of limb or an external lesion, the question as to physical condition of an injured employee after an accident and the causal relation of the accident to such condition usually can be answered only by expert medical testimony. Caekos v. Stanley Fruit Co., 55 Ariz. 72, 98 P.2d 471.

The Commission finding that is the subject of the instant matter is this:

'That applicant does not have any new, additional or previously undiscovered disability attributable to this injury by accident arising out of and

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in the course of her employment on February 10, 1948.

The precise issue is whether this finding reasonably is supported by competent evidence.

From the report of the group consultation of October 17, 1958, we quote:

'X-Rays: The x-rays were reviewed and compared with the previous radiographs taken before the case was closed in 1950. These show definite increase in proliferative and degenerative changes, particularly about C-5 and C-6. The changes are of a character ...

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