Rehearing Denied Nov. 15, 1960.
[88 Ariz. 266] Evans, Kitchel & Jenckes and Earl H. Carroll, Phoenix, for petitioner.
James D. Lester, Phoenix, for respondent Industrial Commission, Donald J. Morgan, Frances M. Long Phoenix, Edward E. Davis, Glendale, C. E. Singer, Jr., Phoenix, of counsel.
Review by certiorari of an Award of the Industrial Commission, denying petitioner's application to reopen a claim.
On August 25, 1955, Dale Rosene sustained a compensable injury in an accident arising out of and in the course of his employment[88 Ariz. 267] with Pacific Motor Trucking Company, hereinafter called petitioner. Subsequently Rosene was examined by a Medical Advisory Board, which determined that he had sustained a 20% partial, general disability. On the basis of these findings and other factors the Industrial Commission made a final award compensating Rosene for 61.76% loss of earning capacity. The
Commission retained jurisdiction of the matter to amend the award if Rosene's physical condition should change.
On September 2, 1958, petitioner requested that Rosene be ordered to submit to a re-examination by a Doctor T. H. Taber, Jr. This was done and Doctor Taber submitted a report to the Commission indicating that Rosene's condition had improved so that he had no greater than a 10% disability. Petitioner submitted to the Industrial Commission a formal request that the claim be reopened. In January of 1959, Rosene was examined by a medical board composed of Drs. Updegraff, Weber, and Elkins. The board found that his disability had remained at 20%. The Commission thereupon denied the petition to reopen.
Petitioner then submitted a Notice of Protest and a Petition and Application for Rehearing. A hearing was held and testimony was taken from Drs. Updegraff Elkins, Weber, and Taber. Dale Rosene also testified. Dr. Thomas H. Taber testified for the petitioner.
Following the hearing, the Commission entered its order upon rehearing, denying petitioner's application to reopen the claim.
In Jastrzebski v. Wasielewski, 82 Ariz. 92, 308 P.2d 937, we held that Section 23-1044, subdivision F., of the Arizona Revised Statutes, 1956, provides for reopening a claim for adjustment of compensation if it is shown that (1) there has been a change in physical condition subsequent to the time the prior claim culminated in award, (2) such change results from the injury upon which the prior award was based, and (3) it affects the earning capacity of injured employee. The burden is upon the petitioner to establish each of these elements. See also Cole v. Town of Miami, 52 Ariz. 488, 83 P.2d 997 and London v. Industrial Commission, 71 Ariz. 111, 223 P.2d 929.
Petitioner concedes this to be the rule, and claims to have satisfied its requirements. It relies on the testimony taken at the hearing and the report by Dr. Taber. This Court will not upset the findings of the Commission where there is a conflict in the competent evidence upon which its findings are based, and where reasonable mem might reach different conclusions from the facts. Jastrzebski v. Wasielewski, supra. The only issue which we must therefore consider is whether the findings of the Commission are reasonably supported by competent evidence.
[88 Ariz. 268] The testimony at the hearing, included the following by Dr. Updegraff:
'Q. With reference to the right arm, doctor, if you were to give a functional disability rating with respect to the right arm, what in your opinion would be the extent of that functional disability?
'A. I would estimate twenty ...