Magma Copper Co. v. Industrial Commission, 1

• Decision Date: 06 July 1977
• Docket Number: No. 1,CA-IC,1
• Citation: 566 P.2d 699,115 Ariz. 551
• Parties: MAGMA COPPER COMPANY and State Compensation Fund, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, James L. Furr, Respondent Employee. 1579.
• Court: Arizona Court of Appeals

Page 699

566 P.2d 699

115 Ariz. 551

MAGMA COPPER COMPANY and State Compensation Fund, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent James L. Furr, Respondent Employee.

No. 1 CA-IC 1579.

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

July 6, 1977.

Twitty, Sievwright & Mills by John F. Mills and Robert K. Park, Chief Counsel, State Compensation Fund, Phoenix, for petitioners.

John H. Budd, Jr., Chief Counsel, the Industrial Commission of Arizona, Phoenix, for respondent.

Darrel G. Brown, Tucson, for respondent Employee.

JACOBSON, Presiding Judge.

The sole issue raised by this special action petition Industrial Commission is whether the evidence supports the hearing officer's determination that the claimant has sustained a new, additional or previously undiscovered condition so as to justify reopening of his claim.

On June 16, 1960, the claimant, James L. Furr, received an industrial injury when a dynamite explosion occurred in his immediate vicinity while working underground for San Manuel Copper Company. As a result, he complained of ringing in his ears and was treated at the company hospital and was also treated by Drs. F. M. Findlay and C. R. Biggs. Mr. Furr filed an industrial claim and on January 9, 1961, the Industrial Commission entered a "Record of Commission Action" which cited the industrial episode, but concluded that "applicant had suffered an ear damage and that the injury in his ears was due to hypertension and obesity."

On January 10, 1961 Furr, through his attorney, filed a Petition and Application for Rehearing, alleging that the trauma of the accident resulted in loss of hearing, severe vertigo and damage to the head from concussion. The Commission on several occasions solicited Furr's attorney for medical evidence supporting this petition. None was forthcoming and on April 17, 1961 the Commission entered an order denying rehearing and affirming its previous Record of Commission Action.

Nothing further was done insofar as this claim was concerned until approximately eleven years later. On June 16, 1972, Furr, through his present counsel, filed a Petition to Reopen for a new, additional or previously undiscovered condition. The condition alleged to be new or previously undiscovered is mental in nature and allegedly is causally related to the 1960 industrial episode.

The State Compensation Fund issued its denial of the Petition to Reopen and a timely Request for Hearing was made. The first hearing in this matter was held on January 25, 1973 and thereafter the hearing officer issued his decision which, among other things, determined that the Industrial Commission's Record of Commission Action and its subsequent affirmance of that action, was not final, and that therefore this claim had never been closed. Magma Copper sought review of that decision and this court in a memorandum decision (1 CA-IC 1090) set aside the award, determining that the hearing officer was legally incorrect in his characterization of the Commission action in 1961; that the 1961 action was final; and that Furr was entitled to a determination of his Petition to Reopen on its merits.

Following the setting aside of the award, two additional hearings were conducted, at the conclusion of which the hearing officer determined that Furr was entitled to reopen his claim on the grounds that he now suffers a new or previously undiscovered condition causally related to the 1960 industrial episode. Furr's present condition giving rise to the reopening is mental (schizophrenia). Magma has again sought review of this decision.

The facts developed at the three hearings indicate that Mr. Furr had a long history of mental problems. He was first hospitalized in 1952 at the Arkansas State Hospital where he remained substantially all the time until 1955 when he went A.W.O.L. During his stay at the Arkansas State Hospital, he was diagnosed as suffering "catatonic schizophrenia" and the prognosis was that while he would have periods of remission, "he will never get well."

Furr was employed by San Manuel Copper Company in 1957 and apparently enjoyed a good work record until the industrial episode on June 16, 1960. Following this explosion, Furr started to miss work and, according to his wife, had a complete change of personality. This resulted in Furr being admitted to the Pima County Hospital in January, 1961 (approximately during the same time that his industrial claim was being processed by the Commission) for mental problems when he was treated by Dr. Cutts, a psychiatrist. He was then committed to the Arizona State Hospital in April, 1961, where he was in and out of that institution for approximately three years. He has been under the treatment of the Pima County Mental Health Center since that time.

Upon his last release from the Arizona State Hospital (1964 or 1965), he worked for approximately eight months for Krueger Manufacturing Co. and worked briefly, but unsuccessfully, at the Tucson Drapery Company (owned by Furr's wife).

Dr. Philip Greenbaum, a psychiatrist, concluded that the trauma of the 1960 industrial explosion "apparently precipitated an acute psychotic period during the following three years, followed by a more chronic state, which was manifested by withdrawness and possibly some deterioration and convulsive seizures." Dr....