Arnott v. Industrial Commission

• Decision Date: 07 March 1968
• Docket Number: No. 9123--PR,9123--PR
• Citation: 438 P.2d 419,103 Ariz. 182
• Parties: William S. ARNOTT, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.
• Court: Arizona Supreme Court

Page 419

438 P.2d 419

103 Ariz. 182

William S. ARNOTT, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.

No. 9123--PR.

Supreme Court of Arizona, In Banc.

March 7, 1968.

Donald J. Morgan, Phoenix, for petitioner.

Glen D. Webster, Jr., Phoenix, for respondent; Robert K. Park, Chief Counsel, The Industrial Commission of Arizona, Robert D. Steckner, Phoenix, Spencer K. Johnston, Dee-Dee Samet, Tucson, Joyce Volts, Arthur B. Parsons, Noel J. R. Levy, Donald L. Cross, William E. Smith, and Michael A. Lasher, Jr., Phoenix, of counsel.

McFARLAND, Chief Justice.

This case is before us on a petition for review of the decision of the Court of Appeals, Division One, 6 Ariz.App. 226, 431 P.2d 300, in which that court set aside an award of The Industrial Commission. Decision of the Court of Appeals vacated, and award of The Industrial Commission of Arizona set aside.

As a trier of the facts, it is the privilege and the duty of the Commission--and not of an appellate court--to resolve all conflicts in the evidence, and draw warranted inferences; where more than one inference may be drawn, the Commission is at liberty to choose either, and this court will not disturb its conclusion unless it is wholly unreasonable. Waller v. Undistrial Commission of Arizona, 99 Ariz. 15, 406 P.2d 197; Muchmore v. Industrial Commission of Arizona, 81 Ariz. 345, 306 P.2d 272. We therefore set out the facts in the light most favorable to the findings of the Commission.

Petitioner William S. Arnott, while driving his Volkswagen automobile in the course of his employment, was rear-ended by another vehicle. He was injured, and his car was damaged to the extent of $32.40. Arnott lost no time from his work as a rehabilitation agent for The Industrial Commission--a white-collar job involving desk work, speechmaking, and some travel. The injuries appeared at first to be minor, but, despite treatment by several Phoenix specialists, his symptoms kept getting worse.

He was treated by Dr. Frank Eisenhardt, Dr. Paul E. Palmer, Dr. Standford Hartman, Dr. D. E. Brinkerhoff, and Dr. George Hoffman. Diagnostic aid was obtained from X-rays and an electromyogram. Treatment included physical therapy and traction. On March 25, 1965, Arnott was seen in a group examination and consultation by Doctors Hartman, Hoffman, Howard Aidem, and Frank DePaoli. At that time Arnott complained that he continued to have pain in his neck and shoulder, difficulty in swallowing, and a sore throat. All tests, X-rays, etc., were essentially negative except for what the doctors termed 'subjective complaints of a minor degree of restriction about the left shoulder.' They recommended closing the case with no disability.

The Commission made a finding of no disability. Arnott's attorney then petitioned for a hearing to have the finding amended to 'show 'minimal permanent disability' instead of 'no permanent disability. " The Commission ordered another group examination, which was held on November 18, 1965, by Doctors A. F. Miller, Jr., R. A. Johnson, K. L. Huffman, and Hal W. Pittman. This group reported that there was no significant change from the condition shown by the report of the earlier group examination, that no treatment was recommended, and that there was 'no indication of any permanent physical impairment attributable to the accident of July 24, 1963.'

At the hearing Dr. Pittman stated:

'I would consider that the limitation of the motion of the shoulder such as Mr. Arnott has, though it does represent some decrease in function of that particular extremity, it does not represent a disability.'

When asked what degree of decrease in function was present, he answered that it was 'minimal.' On being pressed to be more specific, he said that the loss of function of the left shoulder would be 'less than 1%.'

Dr. Johnson stated that he did not consider the loss of function a physical impairment because it was 'minimal.'

All eight doctors on the two panels signed their respective reports. These men are outstanding in the fields of neurology, nose and throat, and orthopedics. The only conflicting evidence came from Dr. William LaJoie who did not examine Arnott until 1965--after the later had become involved in another accident which was not disclosed to the doctor prior to the examination. Dr. LaJoie found many things wrong with Arnott, and, since he had not testified at the hearing, a second hearing was held to take his evidence, which included another electromyogram that contradicted the earlier one. Despite this evidence, the Commission resolved all conflicts in the evidence against Arnott, and awarded him permanent partial disability equal to a 1-percent loss of function of the entire left upper arm. Translated into money, the award was for $87.50 per month for one quarter of a month.

Arnott brought the matter to the Court of Appeals by certiorari. His brief in that court raised only one issue, namely, whether it was proper for the Commission to limit the award to a scheduled disability--loss of the use of an arm--when the injury...