George A. McALLISTER, Petitioner,
INDUSTRIAL COMMISSION of Arizona and John W. Tarpley (Tucson Iron Works), Respondents.
Rehearing Denied June 14, 1960.
[88 Ariz. 26] Jack T. Arnold and Lawrence Ollason, Tucson, of counsel, for petitioner.
James D. Lester, John R. Franks, Donald J. Morgan, Frances M. Long and Edward E. Davis, Phoenix, of counsel, for respondent Industrial Commission.
Petitioner seeks in this certiorari proceeding to set aside an award of The Industrial Commission of Arizona (hereinafter called the 'Commission') denying him permanent compensation for injuries sustained in an industrial accident which took place on November 9, 1955. A prior award of the Commission denying petitioner compensation for the same accident was set aside by this Court in McAllister v. Industrial Commission, 83 Ariz. 213, 319 P.2d 129, on the ground of insufficiency of evidence, essentially for the reason that the Medical Advisory Board had failed to consider recent x-rays of petitioner before arriving
at its finding that petitioner had suffered no physical disability as a result of the accident.
Following our decision petitioner was examined again by the Medical Advisory Board which affirmed its prior conclusion that petitioner's condition was stationary and that he had not sustained any disability over the 15% general physical functional disability awarded to him for a previous accident which occurred in June 1954. The Board also concluded that petitioner had a 'definite and clearly diagnosable hysterical psychoneurosis and hypochondriacal reaction,' which was not caused or aggravated by the accident.
The Commission held two further hearings. The record of the hearing held on February 21, 1958 shows that since June 1957 petitioner had been employed full time by Leo's Auto Supply as salesman and parts installer, earning an average of approximately $300 per month, and that petitioner had fully performed his duties, which involved, in part, strenuous physical effort applied in cramped or confined areas of movement. Petitioner himself testified that he had been able to perform his duties, but had suffered pain in doing so, and that his physical condition had become increasingly worse.
At a hearing on July 9, 1958, Dr. Lindsay E. Beaton, a member of the Medical [88 Ariz. 27] Advisory Board, was examined by the Commission and by petitioner's counsel. Dr. Beaton, a specialist in neurology and psychiatry, stated that he had performed the entire neuropsychiatric examination of petitioner and had prepared the conclusions on that subject on behalf of the Board. It was stipulated at the hearing that the neuropsychiatric examination made by Dr. Beaton, and his testimony, conclusions and recommendations given at the hearing, 'speak for the entire Board.'
Dr. Beaton testified that in his opinion petitioner is not a malingerer but suffers real pains which are the result of a psychoneurosis; that he has difficulty in sleeping, feels aching in his legs and back and feels tightening of his back muscles; that the pain is 'not disabling' and 'does not impair function,' but it 'bothers' and 'impairs him' and does 'interfere' with his 'ability to earn a living * * * to some extent'; that petitioner suffers from a 'conversion hysteria' which reflects an unconscious effort on his part to preserve a psychological disability; that the 15% functional disability assigned to petitioner does not include the effects of his psychoneurotic symptoms; and that these symptoms will 'probably slowly get better' and will 'tend * * * to disappear' upon conclusion of the proceeding before the Commission.
Dr. Beaton stated that petitioner's psychoneurosis results from emotional causes within his personality and was not, and could not be, caused or aggravated, in a medical sense, by an outside trauma or accident; that he presumably would not have had his present symptoms but for the instant accident; that if petitioner 'had not had a back injury, I doubt that his psychoneurotic symptoms would have lighted on his back'; and that there is a 'connection' between the accident and the symptoms, with the accident as the 'first step' and the psychoneurosis being the 'final result.' Dr. Beaton concluded that petitioner needs and should have 'psychiatric treatment.'
Thereafter the Commission entered its award denying compensation to petitioner, and found that petitioner sustained a 15% general physical functional disability as the result of the 1954 accident, for which he had been awarded permanent compensation; that he injured his back in the 1955 accident from which he has 'completely recovered without residual disability'; that he 'suffers from a hysterical psychoneurosis and hypochondriacal reaction, which accounts for a great majority of his symptoms, and which was neither caused nor aggravated by his accident of November 9, 1955, nor by the injuries resulting therefrom'; that he 'is entitled to accident (medical) benefits and for compensation for total temporary disability from November 10, 1955 through July 8, 1956 in the sum of $1,500.89, all of which has been paid'; that petitioner's
average monthly wage before the instant [88 Ariz. 28] accident was $272.80; and that petitioner 'is physically and mentally able to perform the duties of his job with Leo's Auto Supply and therefore the applicant is not disabled for work by reason of his physical nor mental condition.'
Petitioner has assigned three errors in this certiorari proceeding: first, that the finding of the Commission that petitioner suffered only a 15% loss of earning capacity is not supported by sufficient evidence; second, in the alternative, that petitioner should have been given further medical treatment for his injury; and third, that there was insufficient evidence to support the finding that petitioner's pre-injury wages were $272.80 per month.
Petitioner's third assignment of error is not supported by argument in his brief and will, accordingly, be deemed to have been abandoned. See e. g.: Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992; Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791; Colboch v. Aviation Credit Corp., 64 Ariz. 88, 166 P.2d 584. Further, there is no evidence in the record herein to dispute the Commission's finding of pre-injury wages.
By his first assignment, petitioner disputes the purported finding of the Commission that he 'suffered only a 15% loss of earning capacity * * *.' The Commission found, however, that petitioner suffered a 15% general physical functional disability as a result of a prior accident, and that the instant accident of November 1955 resulted in no residual disability. Having thus found no disability, the Commission did not determine petitioner's present earning capacity nor did it find whether he had suffered a loss of earning capacity as a result of the 1955 accident. We need not decide, however, whether the first assignment of error properly puts in issue the Commission's finding that petitioner suffered no permanent disability by virtue of the 1955 accident, as our decision on the second assignment of error is determinative of this appeal.
The second assignment raises the issue of petitioner's entitlement to further medical treatment for the injuries sustanined as a result of the 1955 accident. With respect to the physical effects of these injuries, it is clear from the record that petitioner's condition is stationary and that he requires no further medical treatment therefor. Petitioner claims, however, that his psychoneurotic symptoms, which resulted from the accident and his physical injuries, do require treatment.
The Commission disallowed compensation and medical benefits for petitioner's psychoneurosis for the reason that this mental condition was not caused or aggravated by the 1955 accident or the resulting injuries. Such finding is based on the conclusion of Dr. Beaton and the Medical Advisory Board that there was no causation, in a [88 Ariz. 29] medical ...