Brooks v. Industrial Commission

• Decision Date: 21 August 1975
• Docket Number: No. 1,B-Z,CA-IC,1
• Parties: John D. BROOKS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent,Bee Transportation and Warehouse, Respondent Employer, Fidelity & Casualty Company of New York, c/o Underwriters Adjusting Company, Respondent Carrier. 1089.
• Court: Arizona Court of Appeals

Page 199

539 P.2d 199

24 Ariz.App. 395

John D. BROOKS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent B-Z Bee Transportation and Warehouse, Respondent Employer Fidelity & Casualty Company of New York, c/o Underwriters Adjusting Company, Respondent Carrier.

No. 1 CA-IC 1089.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 21, 1975.

[24 Ariz.App. 396] Jerome & Gibson, P.C. by D. A. Jerome, Phoenix, for petitioner.

Greg L. Folger, Chief Counsel, The Industrial Commission of Ariz., Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by Donald L. Cross, Phoenix, for respondent employer and respondent carrier.

OPINION

NELSON, Presiding Judge.

This cause presents essentially two questions to this Court for review: 1. Is the award of The Industrial Commission of Arizona for a non-compensable claim supported by the evidence? 2. Was the procedure followed by the hearing officer in arriving at his decision permissible under the statutes and rules governing the procedure before the Commission and its hearing officers?

John D. Brooks (Brooks), petitioner here, was employed by B-Z Bee Transportation and Warehouse (B-Z Bee), respondent employer, as a part time furniture and equipment mover in Yuma, Arizona. On January 18, 1972, he alleged he suffered an injury when a safe he was helping load onto a truck slipped and struck him in the abdomen. He finished work that day. There was no work for him the next day, a Wednesday. He reported on Thursday, started to go to work, then indicated to the manager, Lee Hudson (Hudson) that he was ill and would rather go home, if it wouldn't affect his job. Hudson indicated he could go home, thinking he had the flu. Brooks' wife called on Friday and said Brooks was still sick. On Sunday, January 23, Brooks was hospitalized with what was later diagnosed as traumatic pancreatitis and a diaphragmatic hernia. His family physician, William A. Phillips, M.D., testified the diagnosis of 'traumatic', rather than 'acute', pancreatitis was made as a result of the history of the alleged accident given to him by Brooks. The employer was notified on Monday, January 24, 1972, that Brooks was in the hospital and was claiming an industrial injury.

Brooks' foreman, Robert Whatley, and his co-worker, Charles Simms, testified that there was no accident with the safe, that nothing unusual happened that day, and that Brooks did not receive any injury on the day in question nor originate any complaints of injury. Brooks testified Whatley saw the safe hit him and commented upon it at the time. Brooks' wife and sister-in-law testified that both Whatley and Hudson later acknowledged there had been an accident involving the safe. Whatley and Hudson absolutely denied making the statements attributed to them.

It is axiomatic that in reviewing awards of the Industrial Commission of Arizona this Court will view the evidence in a light most favorable to sustaining the award, Micucci v. Industrial Commission of Arizona, 108 Ariz. 194, 494 P.2d 1324 (1972), and the Commission findings will not be disturbed when the evidence is in conflict. Malinski v. Industrial Commission of Arizona, 103 Ariz. 213, 439 P.2d 485 (1968). There was a sharp conflict in the evidence as to whether there was an accident and consequent injury on the job. This issue was resolved against Brooks and the evidence clearly supports that finding.

Brooks also attacks the procedure used by the hearing officer in arriving at his ultimate award. The initial hearing was held in Yuma on October 11, 1972. At that hearing, presided over by hearing officer C. E. Singer, J., Brooks, his wife, Dr. Phillips, Charles Simms and Lee Hudson testified. Although he had been properly subpoenaed, Whatley was out of town and unavailable at this time. A continued hearing was held in Yuma on December 5, 1972, presided over by hearing officer Donald L. Ghareeb for hearing officer Singer. Whatley testified, as well as Brooks' sister-in-law, Murle Archie. Counsel for Brooks also sought to recall Mrs. Brooks to further rebut Whatley's damaging testimony. Ghareeb denied the request and counsel made an offer of proof.

After a review of the testimony taken in the first two hearings, Singer ordered a third hearing in Yuma on April 3, 1973, wherein Mrs. Brooks was recalled for additional testimony, as was Lee Hudson. On April 30, 1973, Singer entered an award for a compensable claim wherein he made this finding after reviewing the fact that the evidence was in conflict:

'8. In workmen's compensation proceedings, our Courts have held that the compensation act requires a liberal interpretation and any reasonable doubt is to be resolved in favor of the injured employee; that where there exists a conflict of the testimony it becomes the duty of the Commission to resolve such conflict. That this Hearing Officer frankly admits that the testimony and demenor (sic) of the witnesses are such that it is difficult, if not impossible, to assertain (sic) which witnesses were not being truthful in their testimony; accordingly this matter is resolved in favor of the applicant.'

The respondent carrier thereafter filed a motion for reconsideration, alleging that Brooks had, as a matter of law based upon finding #8, Supra, failed to carry his burden of proof by a preponderance of the evidence and that the award should be rescinded and Singer should either enter an award for a non-compensable claim or order a further hearing where he could personally observe Whatley testify and make a better judgment on credibility. On May 21, 1973, Singer entered a decision rescinding the award for a compensable claim and ordered a further hearing to personally take the testimony of Whatley. This fourth and final hearing was held by Singer in Yuma on September 11, 1973. On September 28, 1973, Singer entered an award for a non-compensable claim, finding Brooks had failed to carry his burden of proof. That decision was affirmed by Singer on review on November 7, 1973 and is here on certiorari. The hearing officer had authority for all of the procedures here involved and there was no abuse of discretion. We affirm the award.

We take judicial notice of the fact, by virtue of our own records, that it is not an uncommon practice for a hearing officer other than the one assigned to preside over a given case to take a portion of the evidence, either for convenience of counsel or to save travel time and costs for the assigned presiding hearing officer. This is usually done on stipulation of counsel. Since we have not been cited to any objections by either party to the taking of Whatley's testimony in the first instance by hearing officer Ghareeb, nor have we discovered any in the record, the propriety of such a procedure is not before us. We would observe, however, in view of what such a procedure...