Baum v. Industrial Commission

• Decision Date: 29 September 1965
• Docket Number: No. 8563,8563
• Citation: 405 P.2d 880,98 Ariz. 396
• Parties: Earl BAUM, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.
• Court: Arizona Supreme Court

Page 880

405 P.2d 880

98 Ariz. 396

Earl BAUM, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.

No. 8563.

Supreme Court of Arizona, In Banc.

Sept. 29, 1965.

Lester Engler, Phoenix, for petitioner.

Dee-Dee Samet, Phoenix, for respondent; Richard J. Daniels, Robert A. Slonaker, Courtney L. Varner, Merton E. Marks, Phoenix, Glen D. Webster, of counsel.

McFARLAND, Justice:

This is a writ of certiorari to review an award of The Industrial Commission of Arizona, hereinafter called the Commission, which awarded claimant, Earl Baum, hereinafter called applicant, temporary disability accident benefits up to September 25, 1963, for a personal injury received on August 16, 1962.

Petitioner, on August 16, 1962, sustained an injury to his lower back while in the course of and arising out of his employment as a mechanic for the A. J. Bayless Markets. The record indicates that applicant strained his back while grabbing for the rear-end assembly of a truck which had slipped off a bench upon which it was resting. Applicant continued to work until August 21, 1962, at which time back pains caused him to visit the office of Dr. D. M. Ross, who diagnosed the applicant's condition as an 'acute low back strain.' As a result of this injury, applicant was hospitalized from October 23, 1962, until November 7, 1962. During his hospitalization, applicant underwent extensive examinations conducted by several different physicians, and, in addition, he was X-rayed several times. Upon being discharged, applicant was attended by an osteopathic specialist, Dr. Daniel Fridena, Jr., for follow-up care. On October 6, 1963, applicant was examined by Dr. Hal Pittman, who recommended that a group consultation be held before surgery was undertaken as an operation might be indicated from an orthopedic standpoint. The consultation was held on February 26, 1963, and it was the decision of this group that applicant did not have an operative condition. It was the recommendation of the group that applicant attend the industrial service program at Gompers Clinic, and that he undergo general muscle-building and gait-training exercises. The group consultation report also indicated:

'The condition is not stationary and he is not yet able to return to his regular work.'

Applicant attended the clinic, underwent the exercises, and various reports were made on his progress. The report of April 29, 1963, states:

'Mr. Baum shows very little change. He has been here six weeks now and he is given a 'pep talk' this morning and if he shows no further improvement he will be terminated in the next two weeks.

'He is to return in two weeks and he is told today to really 'push it' to stretch his back out and work hard, that he will be released to work in two weeks.'

On May 17, 1963, applicant underwent another consultation conducted by three physicians. The examination was conducted, and a report submitted to the Commission, the last paragraph of which reads:

'COMMENTS: This patient's subjective complaints and performance are quite out of proportion to any abnormal objective finding and the patient has quite apparently made no progress whatsoever towards rehabilitating himself. The consultants do not find evidence of neurological involvement which would indicate the necessity for surgery or other treatment on this basis. The patient has received treatment from various sources and is apparently satisfied with none. It is felt, therefore, that it would be advisable to have this man evaluated by the Medical Advisory Board.'

On August 5, 1963, applicant underwent examination by the Medical Advisory Board of The Industrial Commission of Arizona, which was composed of six physicians. The board's report stated:

'It is the opinion of the examiners that this patient does not require any further examinations or treatments, as far as his back is concerned, and there is no permanent impairment as a result of the injury of August 16, 1962.

'Prior to the closure of the case, it is recommended that the patient be seen by a psychiatrist for investigative purposes only, to determine whether emotional factors play a part in his alleged inability to return to work.'

Applicant underwent psychiatric evaluation by Dr. Otto L. Bendheim, in September of 1963, who concluded:

'No psychiatric disease is found. Psychiatric clearance is given.'

On October 1, 1963, the Commission found, based upon the group consultations, the Gompers Clinic reports, the psychiatrist's evaluation, and the report of the Medical Advisory Board, that applicant was entitled to temporary disability accident benefits. Applicable portions of the statement of findings and award are as follows:

'1. That the above-named applicant on August 16, 1963, [sic] sustained a personal injury by accident arising out of and in the course of his employment.

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'3. That said personal injury entitled said applicant to accident benefits (medical) until September 25, 1963.

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'6. That said applicant is entitled to compensation for total temporary disability from August 21, 1962, through September 23, 1962, and from October 23, 1962, through September 25, 1963, in the sum of $4,020.57, and compensation for partial temporary compensation from September 24, 1962 through October 22, 1962, in the sum of $65.22, or a total sum of $4,085.79.

'7. That the medical evidence reflects that said applicant has no physical disability resulting from said accident, and the Commission so finds.'

Applicant timely filed an application for a rehearing. A rehearing was held during which hearing testimony was taken and, on September 30, 1964, the award of October 1, 1963, was affirmed. From this award, an application for the writ was filed with and granted by the court.

Applicant contends that the findings and award of October 1, 1963, is in error for the reason that the testimony at the rehearing demonstrated that applicant's condition was not stationary, and that he was, and has been, since the day of the accident, unable to perform the services required of him by his former employment. Applicant claims that the medical evidence before the Commission showed that applicant still had a disability; that there was no evidence before the Commission that applicant was able to return to his former employment; that the objective findings of the doctors who testified did not support the subjective complaints of the applicant; that applicant had met his burden of establishing that he had a disability attributable to his injury of October 16, 1962; and, finally, the Commission's affirmance of September 30, 1964, was contrary to law, as there were no findings to justify the October 1, 1963, award.

The issue before this court is whether or not the findings of the Commission are sustained by the evidence. This court has upon many occasions held, in deciding this question, that if the Commission's findings are reasonably supported by the evidence, then the findings must be sustained. Where there is a conflict of evidence, as in the instant case, the court will not weigh the evidence, but only determine whether there is sufficient evidence to give reasonable support to the finding of the Commission. Russell v. Industrial Commission, 98 Ariz. 138, 402 P.2d 561; Magma Copper Co. v. Industrial Commission, 96 Ariz. 341, 395 P.2d 616; Phelps Dodge, Morenci Branch, v. Industrial Commission, 90 Ariz. 248, 367 P.2d 270; Graver Tank & Mfg. Co. v. Industrial Commission, 96 Ariz. 356,...