Emery v. Industrial Commission

• Decision Date: 03 October 1949
• Docket Number: 5187
• Citation: 69 Ariz. 87,210 P.2d 217
• Parties: EMERY v. INDUSTRIAL COMMISSION et al
• Court: Arizona Supreme Court

210 P.2d 217

69 Ariz. 87

EMERY v. INDUSTRIAL COMMISSION et al

No. 5187

Supreme Court of Arizona

October 3, 1949

The award is affirmed.

Leonard S. Sharman, of Phoenix, for petitioner.

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

La Prade, Chief Justice. Udall, Stanford, Phelps and De Concini JJ., concur.

OPINION

La Prade, Chief Justice.

Petitioner Lorenzo O. Emery sued out a writ of certiorari in this court to review and reverse the award of the Industrial Commission disallowing him compensation. Petitioner claims that he was injured on March 29, 1948, by an accident arising out of and in the course of his employment with Neil B. McGinnis Equipment Company. Petitioner, at the time of the alleged injury, was engaged with a coemployee in attempting to load a heavy piece of machinery (combine header) from a loading dock into a pickup truck. The header weighed about 800 pounds, was approximately 12 feet in length, 3 1/2 feet in width, and graduated from zero to 4 feet in height. One end was swung over the edge of the dock and above the truck and gradually edged forward until it dropped into the bed of the truck, which was approximately 3 feet below the floor of the loading dock. In the process of attempting to slide the header forward in the truck bed, it caught, whereupon the coemployee jumped to the ground and shook the header, releasing it suddenly. The header then slid forward and dropped into the truck. With reference to the incident, petitioner stated, "He jarred whatever was loose and as it come loose it give me an awful jerk"; that as he was jerked he attempted to hold onto the header and hold its weight, in order to lessen its fall into the truck; and that at this time he felt a slight pain in the back of head and neck. Petitioner personally drove the truck back to the employer's establishment, where he and the other employee, with the aid of a mechanical crane picked up the header and unloaded it. Petitioner then walked over to a desk for the purpose of writing up his time card and job tickets. When he attempted to pick up a pencil with his right hand, he noticed that he could not do so; this was approximately 40 minutes after the loading incident. He then tried to hang up a job ticket, at which time he fell to his knees. Declining assistance of coemployees, he got up and attempted to write up some more job tickets but again became faint and fell. Within a few minutes he was removed to a hospital, and while enroute experienced another stroke. He remained in the hospital about two and one half hours, and while there experienced two more slight strokes. A month later at his employer's establishment he attempted to do some light work which did not require any lifting or much physical effort. Nevertheless, he was unable to work even to this extent, and remained in this employment only two weeks. On June 22nd he suffered an additional stroke, and at the time of giving his testimony in October had not been able to do any work and was unemployed. The various strokes resulted in partial paralysis on the right side of the body and speech impairment.

In relating the facts surrounding the loading incident the coemployee by affidavit stated, "When the header fell I jumped back. With the header on the bed of the truck I could see over the piece we were loading. * * * He did not mention being hurt." (Italics supplied.)

Petitioner did not file his claim for compensation for injury with the Industrial Commission until July 31, 1948, four months after the alleged strain. The employer's first report of injury of this employee was dated July 28, 1948. The record contains no explanation for the four-months' delay in the presentation of the claim for compensation and the employer's first report.

Upon arriving at the hospital, petitioner was first treated by Dr. Charles N. Horvath, medical resident, who, in a report to the commission dated August 30th, stated that the patient, at the time he was admitted to the hospital, related the incident concerning the lifting of the header, the sudden strain that had been thrown on him, and the pain in the back of head and neck. He further stated that Mr. Emery had revealed to him that he had suffered from high blood pressure for a number of years. The report contains this statement: "My impression at the time was that a small cerebral vessel had burst under the strain of lifting the combine and that symptoms began to appear after there was enough blood accumulated to cause pressure." On the evening in question, while Mr. Emery was still in the hospital, he was seen by Dr. Ben P. Frissell, his personal physician, who, in a report to the commission made subsequent to Emery's claim for compensation, stated that Emery had been under medical observation by him since the summer of 1945, at which time he was found to have moderate hypertension. With reference to his examination of Mr. Emery at the hospital, he stated: "* * * According to records and recollection there was no history of any definite injury accounting for these symptoms at that time. Since that time I understand Mr. Emery has filed a claim with the Industrial Commission stating that he strained himself by heavy lifting preceding the occurrence of the above symptoms. * * *"

Dr. Frissell's report also showed that on April 5, 1948, he saw petitioner following another attack of temporary aphasia and impaired function of the right upper extremity, with impaired vision and slowness of speech. These symptoms were of a temporary nature and preceded petitioner's return to work, April 19th.

At the time of the first award, the record before the commission consisted of petitioner's claim for compensation, the employer's report, the separate reports of Dr. Frissell and Dr. Horvath, and the affidavit of the coemployee. This record was transmitted to the medical advisor's office which reported: "The file on this case has been reviewed as requested in your memorandum of September 3, 1948. From the information available in the records it seems quite clear from a medical standpoint that the attack described was the result of cerebral vascular pathology occurring in the natural progress of hypertension vascular disease. The interval of time between the lifting described and the attack, as well as the fact that there have been other attacks as described in Dr. Ben P. Frissell's letter, is indicative of the spontaneous character of the on-set and is contrary to any causative relationship between the lifting strain and the subsequent paralytic symptoms." (Italics supplied.) (Signed by Dr. James R. Moore).

On this record the commission made its findings and award -- "That said applicant did not sustain a personal injury by accident arising out of and in the course of his employment March 29, 1949" -- and refused any compensation. Upon application for rehearing, a formal hearing was had at which time Dr. Horvath, a Dr. Taylor, and the applicant testified before the commission's referee. On this examination Dr. Horvath testified concerning his examination made to determine the reflexes of the body of patient, etc., and particularly as follows:

"Q. In your opinion, Dr. Horvath, assuming that Mr. Emery did suffer from some high blood pressure prior to this accident and occasionally had headaches in connection therewith, do you feel that this lift that was described to you was the cause that brought about this stroke on that particular day? A. Yes, I do. (Italics supplied.)

"Q. Do you feel that if Mr. Emery had high blood pressure for some time before but had not been particularly bothered with it and had been able to work regularly that he would have been able to continue to work if he had not come...