Employers Mut. Liability Ins. Co. of Wisconsin v. Contreras

• Decision Date: 14 May 1973
• Docket Number: No. 11015--PR,11015--PR
• Citation: 509 P.2d 1030,109 Ariz. 383
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Petitioner, Saga Food Service, Employer, v. Willie P. CONTRERAS and the Industrial Commission of Arizona, Respondents.
• Court: Arizona Supreme Court

Page 1030

509 P.2d 1030

109 Ariz. 383

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Petitioner Saga Food Service, Employer, v. Willie P. CONTRERAS and the Industrial Commission of Arizona, Respondents.

No. 11015--PR.

Supreme Court of Arizona, In Banc.

May 14, 1973.

Motion for Rehearing Denied June 5, 1973.

Browder & Gillenwater by Robert W. Browder and David W. Adler, Phoenix, for petitioner.

Lindauer & Goldberg by Mark H. Goldberg and William B. Revis, Gorey & Ely, Phoenix, for respondent Contreras.

William C. Wahl, Jr., Phoenix, for respondent The Industrial Commission of Ariz.

HAYS, Chief Justice.

This is a petition to review a decision of the Court of Appeals, Division One, reported at 18 Ariz.App. 48, 500 P.2d 308 (1972), setting aside an award of the Industrial Commission of Arizona. The decision of the Court of Appeals is vacated and the award of the Industrial Commission is reinstated.

William Contreras was 42 years old and had been employed by Saga Food Service for approximately 20 years. At the time of his injury he was the assistant manager of Saga's Cafeteria in Palo Verde Main Dormitory at Arizona State University. Many of Contreras's duties were to fill in for employees who failed to show up. He was often called upon to wield a mop, wash dishes, serve food, fill the coffee urn or milk machine, etc. His duty was to keep the place running smoothly and do whatever was necessary to accomplish that result.

In February, 1969, while bending down to pick up a box filled with dishes, he sprained his lower back. The claim was accepted as compensable by the insurance carrier, Employers Mutual Liability Insurance Company of Wisconsin. Dr. Marion Peterson, an orthopedist, treated him. In October, 1969, he performed a laminectomy which at first appeared to relieve the patient's pain. The doctor released him for light duty commencing October 30, 1969, and the employer assigned him to the snack bar in the Union at Arizona State University.

At the snack bar, the duties he was called upon to perform were not essentially different from what he did before the back injury, except that the snack bar was a much smaller business. Soon thereafter, Contreras found that any lifting resulted in pain in his leg. He continued to see his doctor monthly, but the doctor was unable to do anything to help him. Visits consisted of interviews, examinations, prescriptions for pain pills, and continued observation.

On March 17, 1970, the employee was laid off because of either inability or unwillingness to do some of the chores associated with his job, such as carrying six-gallon containers filled with milk, standing on a stool to fill the coffee urn, stooping over to get the water to pour into the urn, etc. He has not worked anywhere since, although the record contains ample evidence of his trying to get a job that he could handle. In September, 1970, he changed to Dr. Howard Aidem, another orthopedist, primarily because the latter's office was closer to the employee's home. Average wage at the time of the injury was $630 per month.

The Physician's release of Contreras shows on its face that further treatment was needed, and that the release was for light duty only.

On February 19, 1970, about one month before being laid off, Contreras received from the insurance carrier a Notice of Claim Status terminating his temporary compensation as of October 30, 1969, on the ground that he had been released on the latter date, by his doctor, For regular work. This notice was protested and a hearing was held.

On December 9, 1970, the hearing officer made the following specific findings of fact, Inter alia:

1. The applicant's condition was not yet stationary.

2. He was laid off on March 17, 1970, because he was Unable to physically perform all of the duties required.

3. He unsuccessfully made a conscientious effort to find a job within the limits of his physical capabilities.

4. That Dr. Aidem testified that although the employee's condition was not yet stationary, he could perform light work that involved no bending and no lifting of items weighing over 25 pounds, but could stoop or walk without limitation, and that in his opinion the employee could perform the duties of assistant manager of a snack bar. That these two opinions seem to be in conflict, and when that situation exists the Commission may choose which opinion to follow.

5. The applicant had sustained his burden of proof.

6. The employee is entitled to temporary total disability benefits from February 10, 1969, through October 30, 1969, and to temporary partial disability status until a further administrative determination is made.

An award was made to conform to the above findings and, on the carrier's request for review, the Commission affirmed that award.

The carrier took the decision to the Court of Appeals which set aside the award.

Unfortunately, the record is confused because of the failure to pin down the medical testimony and to resolve its conflicts by more careful questions. For example, the employee testified that he had to step up on a stool in order to pour water into the top of the large commercialsize coffee urn at the snack bar, and had to bend down to refill the pitcher several times in the course of the filling. When Dr. Aidem was testifying, he was asked what physical motions Contreras was capable of performing. He answered that he should be capable of walking 'within reasonable limits, almost unlimited.' He also stated that the employee would not be able to sit for a continuous period of more than 30 to 45 minutes, that lifting would be restricted to twenty to twenty-five pounds, and bending should be 'just about totally restricted.' Further, 'the man has limitation of motion; and that lateral bending and rotation cause pain.' Despite these limitations, the doctor thought that, 'from the description (of the snack bar job) forwarded to me' could handle that work. He went on to say that his...