Adkins v. Industrial Commission, 7570

Decision Date30 January 1964
Docket NumberNo. 7570,7570
PartiesErnest W. ADKINS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and L. P. McCrite and R. C. Beauchamp & Company, Respondents.
CourtArizona Supreme Court

H. S. McCluskey, Phoenix, for petitioner.

Donald J. Morgan, Phoenix, for respondent Industrial Commission of Arizona, Edward E. Davis, C. E. Singer, Jr., Lorin G. Shelley, Ben P. Marshall, and Laurence Davis, Phoenix, of counsel.

Twitty, Sievwright & Mills; Evans, Kitchel & Jenckes; Fennemore, Craig, Allen & McClennen; Robinette & Ladendorff; Jennings, Strouss, Salmon & Trask; Snell & Wilmer; Gust, Rosenfeld & Divelbess; Ryley, Carlock & Ralston, Phoenix, Boyle, Bilby, Thompson & Shoenhair; Robertson, Childers, Burke & Drachman; Darnell, Holesapple, McFall & Spaid, Tucson, Z. Simpson Cox, Kenneth B. Biaett, L. Dennis Marlowe, Carl W. Divelbiss, Alan K. Polley, John F. Sullivan, Charles B. Tanner, Champe Raftery, Allan J. Stanton, Jack H. Laney, Kenneth S. Scoville, Jack

Choisser, Douglas O. Peterson, Elizabeth A. Stover, Jack C. Cavness, Richard Minne, Harold E. Whitney, Lester L. Penterman, Alfred S. Cox, Marion R. Smoker, Dix W. Price, J. Frank Gibson, L. J. Cox, Jr., Phoenix, George Song, Vincent J. Zepp, Scottsdale, amici curiae.

STRUCKMEYER, Justice.

This is an appeal by certiorari from an award of the Industrial Commission denying petitioner Ernest W. Adkins compensation for total permanent disability. Petitioner has a long history of industrial accidents of which the material facts are these: In 1947, petitioner sustained an injury diagnosed as sacroiliac strain. The Commission eventually determined a 15% general physical functional disability and a 20% loss of earning capacity. In 1959, petitioner while employed as a diesel mechanic and welder suffered another injury to his back and by decision of the Commission dated April 15, 1960, was awarded temporary disability benefits. Subsequently, a petition to reopen the award of 1960 was filed asserting that petitioner had 'become disabled to continue any regular work due to the pain in the lower part of my back and my left leg and foot'. The Commission made a determination that petitioner had new additional or previously undiscovered disability attributable to the 1959 injury. He was hospitalized and examined on a number of occasions by a medical consulting board and was also given psychitric examination.

On February 26, 1962, the Commission entered its decision on rehearing and order affirming previous award. Two findings were made which essentially are the basis of the present appeal. By finding No. 4, it was found from the evidence presented by medical experts that petitioner was capable and physically able to perform the same type of work at the present time as he was doing previous to his injury of September 7, 1959, and had no loss of earnings due to this injury. By finding No. 5, it was found that all prior awards were res judicata and that there was no evidence of new, additional or previously undiscovered disability 'not heretofore compensated'. Partial permanent disability compensation theretofore awarded was ordered reinstated.

In essence, it is petitioner's contention that he has been unable to work since the 1959 injury and therefore he is entitled to compensation for total permanent disability. Petitioner relies on the uncontradicted testimony of his former employers that he is unable to do his former work and that he has been unable to do similar work for another employer since 1959. He also points to the testimony of one David LaForge, Vocational Counsellor for the Arizona Division of Vocational Rehabilitation, the only impartial qualified expert, who testified that it was impractical to attempt to retrain petitioner for other work. LaForge testified:

'A My conclusion as the counsellor was that a combination of factors was such that we wouldn't be able to retrain him for any successful type of gainful employment. I was concerned, not with his disability, but with the feasibility.

'Q With what residue he had left?

'A That plus his education, plus the type of work he had done, plus his psychological condition, plus a number of other factors that all related together that we determine whether he would be a success in training him in some field.'

On cross-examination, he said:

'Q Was his physical disability a major factor in this conclusion?

'A No, it wasn't, sir.

'Q What was the major factor?

'A It was a combination of factors. I wasn't concerned with the extent of his disability because I had worked with people who were 100 per cent disabled, and yet the other factors, their motivations and the client's attitude toward his disability as to what he is actually physically limited in, plus his education and his native capacities.'

Where the evidence of a claimant is corroborated by disinterested witnesses, it may not be disregarded and the reasonable statements of unimpeached witnesses are presumed true when uncontradicted. Williams v. Williams Insulation Materials, Inc., 91 Ariz. 89, 370 P.2d 59.

It is the Commission's position that their doctors could not find any permanent physical change resulting from the 1959 injury and therefore compensation must be denied. The Commission, on rehearing, specifically found:

'4. That this Commission finds, and evidence has been presented by medical experts, that said applicant is capable and physically able to perform the same type of work at the present time as he was doing previous to his injury of September 7, 1959, and he has no loss of earnings due to this injury.'

Basically the medical experts were of the opinion that the petitioner's inability to work was the result of 'functional overlay'. As to this, we have repeatedly held that such medical opinions are not grounds for denying compensation. Gullick v. Industrial Commission, 94 Ariz. 237, 383 P.2d 123; Rahar v. Industrial Commission, 94 Ariz. 170, 382 P.2d 656; Tatman v. Provincial Homes, 94 Ariz. 165, 382 P.2d 573; Vance v. Industrial Commission, 94 Ariz. 142, 382 P.2d 557; Mead v. American Smelting & Refining Company, 90 Ariz. 32, 363 P.2d 930; McAllister v. Industrial Commission, 88 Ariz. 25, 352 P.2d 359; Murray v. Industrial Commission, 87 Ariz. 190, 349 P.2d 627. The medical experts arrived at their opinions because they were of the view that 'functional overlay is not a physical condition'. We have too often rejected this medical theory of causation to require further comment.

Nor may the Commission decide from the evidence of medical experts that petitioner was physically able to perform the same type of work at the present time as he was doing previous to his injury. It has long been the rule in this state that medical evidence is not competent for this purpose. Medical evidence goes only to the physical injury and not as to how that affects earning capacity. Phelps Dodge Corp., Morenci Branch v. Industrial Commission, 90 Ariz. 379, 368 P.2d 450, 451; Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160. The causal relationship between the injury and resulting disability may be the subject of medical testimony. Paulley v. Industrial Commission, 91 Ariz. 266, 371 P.2d 888. But a medical expert is not ordinarily qualified by experience to state an opinion as to whether a claimant with his present disabilities is able to carry out the skills of a particular job--such as here, a diesel mechanic and welder.

Petitioner accepted the award of the Commission dated April 15, 1960, and attempted to continue with his usual employment but found that he was too disabled to continue any regular work. It is the Commission's position that since there was no subsequent change in petitioner's physical condition affecting his earning capacity it does not have the authority to readjust the amount which now represents petitioner's reduced monthly earnings. This brings the Court fact to face with the asserted unconstitutionality of A.R.S. § 23-1044, subd. F.

In 1925, the Seventh Legislature passed the present Workmen's Compensation Act in substantially its existing form. The same year there was referred to the people a proposed constitutional amendment apparently for the reason that previous legislation had been held unconstitutional. See Industrial Commission of Arizona v. Crisman, 22 Ariz. 579, 199 P. 390. The constitutional amendment was approved by the people at the next general election and is presently Article 18, § 8, Arizona Constitution, A.R.S. Later the procedure used was approved and the constitutionality of the legislative act in general upheld in Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, and Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 137 A.L.R. 74.

Article 18, § 8 provides:

'The Legislature shall enact a Workmen's Compensation Law applicable to workmen * * *.

'The percentages and amounts of compensation provided in ...

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