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Dunlap v. Industrial Commission

Supreme Court of Arizona

July 11, 1961

Travis O. DUNLAP, Petitioner,
v.
INDUSTRIAL COMMISSION of Arizona, and Edward P. Oldham, Jr. and Link L. Colvin, dba Copper State Construction Company, Respondents.

In Banc.

Page 601

[90 Ariz. 4] Richard J. Dowdall, Tucson, for petitioner.

Frances M. Long, Phoenix, for respondent, Industrial Commission; Donald J. Morgan, James D. Lester, Edward E. Davis, C. E. Singer, Jr., Phoenix, of counsel.

STRUCKMEYER, Chief Justice.

Travis O. Dunlap, petitioner herein, was employed as a heavy equipment operator by the respondents, E. P. Oldham, Jr. and L. [90 Ariz. 5] L. Colvin, doing business as Copper State Construction Company. Early in the month of April, 1959 petitioner was operating a large diesel powered dozer-caterpillar tractor for respondent company. The testimony reveals that an unusual amount of dust and fumes were present in the place of petitioner's employment and that there was a crack in the exhaust pipe of the caterpillar tractor being operated by petitioner. This defect in the exhaust system permitted exhaust fumes to blow back upon petitioner. The cylinder head of the tractor was also cracked allowing water to mix with diesel fuel at a high temperature. This mixture caused petitioner's eyes, nose and throat to burn and become irritated.

During the week of April 6 to April 13, 1959, petitioner became very ill, suffered chills and fever, endured severe vomiting attacks and made repeated complaints to representatives of respondent company. On April 13, 1959, petitioner consulted Dr. James M. Hesser and was hospitalized. Dr. Hesser's report diagnosed petitioner's illness as: 'Pneumonia which was brought on by dust and fumes from tractor.'

On June 5, 1959 petitioner filed a report of the injury and on June 22, 1959, after a hearing, the Industrial Commission of Arizona entered an award for non-compensable claim. The Commission found that the applicant did not sustain an accident arising out of and in the course of his employment within the meaning of the Workmen's Compensation Act, A.R.S. § 23-901 et seq.

Application for re-hearing was filed and granted. Hearings thereon were held on September 3, 1959 in Tucson and on October 2, 1959 in Phoenix. Thereafter the Commission requested Dr. James R. Moore to review the record and give his medical view. Dr. Moore reported that there was insufficient material in the record, either by physical, x-ray or laboratory examination, to indicate the type of pneumonia or, in fact, if petitioner actually had pneumonia although that diagnosis had been given by the attending physician, Dr. Hesser. Dr. Moore's memorandum was forwarded to Dr. Hesser who then elaborated on his earlier diagnosis. Dr. Moore subsequently reported, in a second memorandum, that there was still insufficient evidence in the

Page 602

file to establish a causal connection between claimant's condition and the condition of his employment.

On February 11, 1960 copies of both memoranda of Dr. Moore and of Dr. Hesser's reports were mailed to petitioner's attorney who was advised that these items would be considered by the Commission in rendering its decision upon re-hearing. On February 25, 1960 the Commission reaffirmed its earlier finding that petitioner's illness did not result from any injury by accident arising out of and in the course of his employment. Petitioner applied to this Court for certiorari.

[90 Ariz. 6] The Workmen's Compensation Act is remedial and its terms should be liberally construed in order to effectively carry out the purpose for which it was intended, that being to place the burden of injury and death from industrial causes upon industry. Nicholson v. Industrial Commission, 76 Ariz. 105, 259 P.2d 547. Nonetheless, the Act does not contemplate a general health and accident fund; hence, there must be a causal connection between the employment and the injury. Buick v. Industrial Commission, 82 Ariz. 129, 309 P.2d 257; Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550. The petitioner in a case of this nature must show (a) that there was an accident arising out of and in the course of employment; (b) that the petitioner was injured thereby, and (c) that the injury or disease was caused by conditions of employment. In re Mitchell, 61 Ariz. 436, 150 P.2d 355 and Davis v. Industrial Commission, 46 Ariz. 169, 49 P.2d 394. The first question to be considered concerns whether there was an accident arising out of and in the course of employment since the statute, A.R.S. § 23-1021, makes the right to compensation dependent upon an 'accident arising out of and in the course of his employment'.

At an early date a majority of jurisdictions in this country steadfastly held that to constitute an 'accident' within the meaning of the usual Workmen's Compensation Act there must have been a sudden, unexpected or violent event resulting in injury. This was the rule in Arizona after Pierce v. Phelps Dodge Corporation, 42 Ariz. 436, 26 P.2d 1017, which held that the word 'accident' referred to a sudden and unexpected event which must have occurred to give rise to the right of compensation. However, the case of In re Mitchell, supra, later liberalized this restrictive rule and held that although accidental injury usually involved a sudden happening caused by some violent or external means such as traumatic injury, an industrial accident need not be an instantaneous happening and violence is not a prerequisite of the right to compensation. See also Dauber v. City of Phoenix, 59 Ariz. 489, 130 P.2d 56.

Here, it is asserted the requirement of an accidental occurrence has been met. Petitioner showed that the tractor upon which he worked was defective. Testimony revealed that the cylinder head was cracked, causing diesel fuel and water to mix at an approximate temperature of 1,000 degrees Fahrenheit. This in turn caused the eyes, nose and throat of those persons coming in contract therewith to burn and become irritated. Petitioner testified that there was a crack in the exhaust system which forced him to inhale an unusual amount of exhaust fumes. Testimony of witnesses at the scene indicated that the tractor in question gave off an unusual amount of smoke which was clearly noticeable. We hold therefore that there [90 Ariz. 7] was an 'accident' which arose out of and in the course of petitioner's employment.

It is undisputed that petitioner suffered from pneumonia so that the only remaining question is whether there was a showing of a causal connection between the fact of employment and the fact of injury. It is at this point that the exact medical testimony becomes of paramount importance because of its ostensible disagreement. The initial report of Dr. Hesser diagnosed petitioner's illness as: 'Pneumonia, which was brought on by dust and fumes from tractor.' X-rays were taken

Page 603

and petitioner was hospitalized. After the second hearing, but prior to the final decision, the Commission requested Dr. James Moore, its medical advisor to review the case. Dr. Moore did not examine the petitioner. His report was based upon the original report by Dr. Hesser. He was of the opinion that, because of lack of detailed information, there was no actual proof showing the ...


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