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Sproul v. Industrial Commission

Supreme Court of Arizona

April 4, 1962

John D. SPROUL, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona and Leach's Air Conditioning, Respondents.

In Banc.

Whitehill, Feldman & Scott, Tucson, and Udall & Udall, and Paul G. Rees, Jr., and William D. Browning, Tucson, for petitioner.

[91 Ariz. 129] C. E. Singer, Jr., Phoenix, Donald J. Morgan, James D. Lester, Edward E. Davis, Lorin G. Shelley, Phoenix, of counsel, for respondent Industrial Commission.

JENNINGS, Justice.

John D. Sproul, hereinafter called 'petitioner', seeks by certiorari to review the

Page 280

findings and award made by the Industrial Commission, hereinafter called 'Commission', and to have said findings and award set aside.

On August 5, 1957 petitioner sustained an injury to his back by an accident arising out of and in the course of his employment with Leach's Air Conditioning. He was treated by Dr. Warren D. Eddy, Jr. who performed an operation on petitioner's back, known as a laminectomy, involving the fusion of two of the spinal vertebrae.

Although the operation was considered successful from an orthopedic point of view, there were still some residual findings connoting disability and impairment of petitioner's back. However, it was thought that no further treatment of the physical difficulty was necessary at that time. The doctors [1] therefore recommended that petitioner's case be closed with a finding of 10% general physical functional impairment, predicated on the patient's history, the spinal fusion, and the residual stiffness and limitation of motion of petitioner's back.

Despite the physical findings, petitioner continued to complain of severe pain in his back together with a tenderness in the region where the operation had been performed. The doctors stated that these were symptoms of the petitioner's neurosis, [2] which manifested itself in pain for which there was no organic cause. [3] This neurosis was still present at the time of Dr. Eddy's last examination of the petitioner.

On May 23, 1960 a hearing was held in order to determine the loss of earning capacity, if any, which petitioner had sustained by reason of his injury. Dr. Eddy testified that in his opinion the petitioner was physically limited from engaging in [91 Ariz. 130] the type of work which he had been doing at the time the accident occurred, and that petitioner should not return to heavy work nor work requiring repeated lifting or bending. It was thought that petitioner should find some work which entailed a sedentary type of activity with little or no bending or lifting. Dr. Eddy stated that petitioner's physical impairment would prevent him from doing any of the types of work with which he had experience, except for possibly light gardening, farming, or cafe work. [4]

A few months prior to the hearing petitioner, with his wife, undertook the management of a small cafe. Petitioner performed the functions of a short order cook and dishwasher, while his wife waited upon tables and handled the other necessary

Page 281

chores. However, petitioner stated he found it impossible to be on his feet more than two or three hours at a time (although he was at work from 12 to 14 hours per day) and it was therefore necessary for him to place a cot in the backroom of the cafe where he lay down when his back began to hurt him or whenever it was not necessary for him to be on his feet.

Petitioner testified at the hearing that the neurosis limited his ability to perform work in the sense that it prevented him from doing the light work which otherwise he might have been physically able to do. He stated that any kind of work or activity which required lifting or bending caused pain which was so severe that it prevented him from continuing with such activity; that he is never free from pain in his back; and that the more work he tries to do the worse the pain gets. He testified that the only type of work which he had been able to perform since his injury of August 5, 1957 was the cafe work and that he was unable to work an eight-hour shift, or for any protracted period of time.

On September 22, 1960, a second hearing was held by the Commission. At this hearing Dr. Lindsay E. Beaton, a neuropsychiatrist, testified that in his opinion, as of October 1959, the date of his last examination of petitioner, the petitioner was totally disabled from an emotional standpoint because of his hypochondriacal conviction[91 Ariz. 131] that he was sick. [5] When informed that petitioner was in fact working, Dr. Beaton stated that something had happened in petitioner's psychological setup enabling him to carry on a certain amount of work, but that without further facts (what petitioner is actually doing in his job, what his reaction to it is, etc.) he could not evaluate his working ability at that time.

On January 19, 1961 the Commission made its final award based in part upon the following findings:

'1. That * * * [petitioner] sustained personal injury by accident arising out of and in the course of his employment on August 5, 1957.

* * *

* * ...


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