Eagle Indem. Co. v. Hadley

• Decision Date: 08 May 1950
• Docket Number: No. 5213,5213
• Citation: 70 Ariz. 179,218 P.2d 488
• Parties: EAGLE INDEMNITY CO. v. HADLEY et al.
• Court: Arizona Supreme Court

Page 488

218 P.2d 488

70 Ariz. 179

EAGLE INDEMNITY CO. v. HADLEY et al.

No. 5213.

Supreme Court of Arizona.

May 8, 1950.

Guynn & Twitty, Phoenix, for petitioners.

H. S. McCluskey, Phoenix, Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.

Morgan & Locklear, Phoenix, for respondent Hadley.

Evans, Hull, Kitchell & Jenckes, Phoenix, amicus curiae.

DE CONCINI, Justice.

This is an appeal by certiorari from an award of The Industrial Commission of Arizona, hereinafter called the commission, awarding permanent total compensation to one L. B. Hadley. The petitioner Eagle Indemnity Company, hereinafter called the insurer, carried the industrial insurance for the Consolidated Vultee Aircraft Corporation, the employer herein. The respondent employee, L. B. Hadley, was employed in war work as a general helper in working upon planes. He was injured on November 17, 1944, when the deck of a plane, upon which he was working collapsed, causing him to fall to the concrete pavement seven to nine feet below. The evidence shows that Hadley at the time of the said accident was 66 years of age. Hadley testified that he was in good physical condition at all times prior thereto. It is also clear that Hadley had worked two years for the employer and at all times prior to the accident without being disabled by reason of age or any condition of physical or mental disability, and that the defendant employer accepted his services on that basis. It was only after the accident that Hadley was unable to perform any remunerative employment.

There is no question but that this was a compensable injury arising out of and in the course of Hadley's employment with the above-mentioned employer. The insurer's several assignments of error and propositions of law reveal to us that the only question before us here is whether the commission's final findings and award allowing L. B. Hadley compensation for permanent total disability under section 56-956, A.C.A.1939, was correct. These assignments of error and propositions of law may be reduced to two contentions, (a) that the commission erred in not apportioning the disability, and (b) that as a matter of law, the claimant (injured employee) had not suffered permanent total disability but only permanent partial disability for work.

In support of the first contention, the insurer argues that Hadley's disability was not entirely due to the compensable accident but is partly attributable to a pre-existing condition of normal physical degeneration, due to Hadley's age, existing at the time of the accident and not accelerated by the injury. In support thereof, the insurer urges that the commission's findings are not supported by the evidence and that as a matter of law, the commission should have apportioned the disability and awarded compensation only for the disability resulting from the industrial accident.

In considering the merits of the insurer's claim we must of necessity look to our statutes. Subdivision (d), section 56-957, A.C.A.1939, sets out the method to be followed by the commission in determining percentage of disability as follows: 'In determining the percentage of disability, consideration shall be given, among other things, to any previous disability, the occupation of the injured employee, the nature of the physical injury, and the age of the employee at the time of the injury. In case there is a previous disability, as the loss of one eye, one hand, one foot, or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.'

In the case of Lee Moor Contracting Co. v. Industrial Commission (Rhoades), 61 Ariz. 52, 143 P.2d 888, 890, we construed the above section so as to distinguish between a pre-existing condition, not disabling before the accident, and a pre-existing disability, in the following words: 'There is a distinction between a pre-existing condition which is dormant and not disabling at the time of the accident and is stimulated into disability by reason of the accident, and a pre-existing disability that is added to by a second disability. In the case at bar, claimant was performing his daily manual labor with no disabling effects from his pre-existing condition up to the time of the accident, but has been disabled since. At the time of the accident he had no disability. True, he had a condition, which was susceptible of becoming a disability when aggravated. Section 56-957, Arizona Code 1939, does not require the Commission to give effect to such a condition and attempt to apportion the concurring causes. That section only requires the Commission to take into consideration previous disability. That means an existing disability at the time of the injury,--something that affects his earning power.'

In the case at bar Hadley did not have a pre-existing disability at the time of his injury which is apportionable under section 56-957, supra; on the contrary he was in good physical condition, which condition attended by his age did not amount to a disability. Only a pre-existing disability is apportionable.

In the later case of Aluminum Co. of America v. Industrial Commission, 61 Ariz. 520, 152 P.2d 297, 302, where the evidence was clear and undisputed that a part of the employee's disability was caused by a disease that was not in any way aggravated by the injury, we said: 'The principle stated in the Rhodes case, supra, however has no application when, as here, one of the two concurring causes which produced the total disability was not attributable to the accident and injury for which compensation was to be granted, but arose independently out of a disease which was not compensable under the record as it stands in this case. Any other construction would violate the fundamental principle of the compensation law, to-wit: 'That compensation is only to be granted when the disability or disease results proximately from the accident.''

The commission in its Supplemental Findings and Award of January 26, 1949, finding No. IV, found: 'That the whole of claimant's disability for work was caused by the accident of November 17, 1944 which, in addition to new injuries, aggravated his pre-existing conditions to the extent that he is totally disabled for work.'

The insurer argues that this finding is incorrect in that Hadley has not as a matter of law sustained the burden of proof as to the extent of disability to which he was entitled. It is a fundamental proposition in workmen's compensation cases that the injured employee must sustain the burden of proof of all the elements material to sustain an award of the commission. Wiggins v Pratt-Gilbert Hdw. Co., 48 Ariz. 375, 62 P.2d 124; Vest v. Phoenix Motor Co., 50 Ariz. 137, 69 P.2d 795. However, our duty on review is not to weigh the evidence, but to examine the record and ascertain whether or not the commission's findings and award are supported by substantial evidence. Aluminum Co. of America v. Industrial Commission, 61 Ariz. 520, 152 P.2d 297. The question then is whether or not there is any reasonable evidence to sustain the above finding as to aggravation of a pre-existing condition, which condition was not a disability at the time of the accident.

The insurer argues that the report of Dr. Hoyt concerning his conclusion that Hadley's impaired eyesight and loss of hearing subsequent to the accident was not caused by the injury is proof of their contention that the disability should be apportioned. However, a review of Dr. Hoyt's report shows that his diagnosis was predicated on the faulty assumption that Hadley suffered no head injury. We hold that the commission is not bound by medical conclusions where not supported by actual facts. Tashner v. Industrial Commission, 62 Ariz. 333, 157 P.2d 608. For the same reasons, the commission was correct in disregarding the conclusion of the Medical Advisory Board of October 6, 1947, that: 'An ear and eye examination was carried out today by Dr. D. R. Hoyt and his findings could not be ascribed to the injury in question.' because it was based on Dr. Hoyt's diagnosis predicated upon the above-mentioned faulty assumption.

The report of Doctors Robert E. Hastings, Harold E. Kosanke and Meade Clyne on November 29, 1948, concluded: 'It is possible that some degeneration in the general physical condition might have been accelerated by his injury.' The insurer argues that the above conclusion of Drs. Hastings, Kosanke and Clyne cannot be considered because it was not positive but speculative. There is no merit to this contention where the point in issue is not subject to positive knowledge, as we have held in the case of Apache Powder Co. v. Bond, 61 Ariz. 184, 145 P.2d 988, 990, as follows: '* * * but we think that the historical circumstances prior and subsequent to the accident, together with the nature of the accident, is sufficient, together with the doctors' testimony of possible causal connection as would give legal validity to the commission's conclusions. A doctor's opinion on matters of this character does not have to be positive in order to have some value as evidence. * * *' This proposition was further developed and sustained in Ison v. Western Vegetable Distributors, 48 Ariz. 104, 50 P.2d 649, 653.

It is well established that findings of the Industrial Commission are entitled to the same consideration as those of a jury or trial judge and consequently will not be disturbed when there is any reasonable evidence to support them. West Chandler Farms Co. v. Industrial Commission, 64 Ariz. 383, 173 P.2d 84; Blasdell v. Industrial Commission, 65 Ariz. 373, 181 P.2d 620. The before-mentioned evidence being substantial we will not disturb the commission's findings that the accident caused the entire disability by resulting in new injuries...