Hurley v. Industrial Commission, 6468

• Decision Date: 19 November 1957
• Docket Number: No. 6468,6468
• Parties: Clifford HURLEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.
• Court: Arizona Supreme Court

Page 357

318 P.2d 357

83 Ariz. 178

Clifford HURLEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent.

No. 6468.

Supreme Court of Arizona.

Nov. 19, 1957.

Pickrell, Hunter, Bartlett & Penn, Phoenix, for petitioner.

James D. Lester, Phoenix, for respondent. John R. Franks, Donald J. Morgan and Robert K. Park, Phoenix, of counsel.

UDALL, Chief Justice.

Petition for review of an award of respondent Industrial Commission, denying the injured woekman any compensation. It is conceded that petitioner received an injury by accident arising out of and in the course of his employment, and that the employer's workers were covered by insurance with the State Fund. Standing alone the injury now complained of, even though there was no loss of earnings involved, would have been compensated as a scheduled injury; however, by reason of the chain of events, compensation in any amount was disallowed. Writ of certiorari issued.

The undisputed facts are these: Petitioner, Clifford Hurley-a 40-year-old ranch hand employed by Orval Cook Ranch-was first injured December 16, 1955, by steel fragments deflected into his eye while grinding an axe. The injury was held compensable, and based upon the testimony of Dr. J. Walter Larkin (D.O.), permanent partial disability was awarded February 20, 1956 on the basis of an 8.5% visual loss to the left eye. This award became final and proper payments as a scheduled injury were made thereon. On August 23, 1956, petitioner, while working for the same employer, was again injured during the course of his employment. This injury-being the one here involved-caused the traumatic amputation of the distal phalanx of petitioner's first finger of the right hand. Accident benefits were allowed. On January 9, 1957, respondent entered an award denying compensation based upon its finding, inter alia, that in effect the combination of the two permanent and otherwise scheduled disabilities constituted merely a general physical functional disability and that petitioner actually suffered no loss of earning capacity therefrom.

It is petitioner's contention the award should have been calculated as a scheduled injury under A.R.S. § 23-1044, subd. B. Petitioner concedes, however, a condition shown to exist in former proceedings between the same parties is presumed to continue until otherwise rebutted. Day v. Frazer, 51 Ariz. 474, 78 P.2d 140. However, he urges that this becomes an issue only at the time the Commission makes its final award in a matter involving the most recent injury. Petitioner further contends the presumption as to no chnage of condition was effectively rebutted in the instant case by the testimony of this same doctor, who on January 22, 1957 re-examined him and found that the visual disability as of then no longer existed. Dr. Larkin frankly testified he could not 'give...