Nelson v. Industrial Commission

• Decision Date: 05 June 1975
• Docket Number: No. 1,CA-IC,1
• Citation: 24 Ariz.App. 94,536 P.2d 215
• Parties: Melvin NELSON, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Harkers Auto Repair, Respondent Employer, Sentry Insurance Company, Respondent Carrier. 1115.
• Court: Arizona Court of Appeals

Page 215

536 P.2d 215

24 Ariz.App. 94

Melvin NELSON, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Harkers Auto Repair, Respondent Employer Sentry Insurance Company, Respondent Carrier.

No. 1 CA-IC 1115.

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

June 5, 1975.

[24 Ariz.App. 95] Jerome & Gibson, P.C., by D. A. Jerome, Phoenix, for petitioner.

Greg L. Folger, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Lewis & Roca, by Merton E. Marks, Phoenix, for respondents employer and carrier.

OPINION

WREN, Judge.

The issue presented on this review of an Industrial Commission award is whether petitioner's Raynaud's Disease was causally related to his employment. The Commission found it was not. We agree with that determination.

Petitioner, Melvin Nelson (Nelson), had worked as a mechanic for twenty-three years before starting work with Harkers Auto Repair (Harkers) on March 30, 1973. On April 27, 1973, Nelson punctured his right wrist during the course of his employment as a mechanic for Harkers. On May 2, Nelson saw Dr. Paul Allison, a general practitioner, who treated the wound which had become infected. Dr. Allison continued to treat petitioner periodically through May, and last saw him on May 22, at which time he felt Nelson needed no further treatment.

On May 23, Nelson went to Dr. Stepan Gulesserian, a general practitioner, complaining of pain and coldness in his left thumb. Dr. Gulesserian referred Nelson to Dr. Enrique Scappatura, a specialist in thoracic surgery who initially saw Nelson on May 25. Dr. Scappartura diagnosed Nelson's complaints as Raynaud's Disease and recommended that he undergo a cervical sympathectomy on his left side, which he did. In December 1966, the same surgery for Raynaud's Disease was performed on Nelson's right side. According to Dr. Max Taylor, M.D., Nelson's attending physician in 1966, the results of the surgery on the right side had been excellent, and Nelson was able to return to his work as a mechanic.

Petitioner's claim for workmen's compensation benefits was denied by the respondent insurance carrier. In protest, a hearing was held, resulting in an award on October 10, 1973, granting benefits to Nelson for the right wrist injury, but additionally finding that Nelson's Raynaud's Disease was not aggravated or otherwise affected by his employment. On review, the award was affirmed by the Commission, and Nelson thereafter filed a petition for writ of certiorari with this Court.

Though there is some indication to the contrary in Nelson's brief, it appears that he is not contending that the right wrist injury of April 27, was an aggravating factor of his disease. If this is erroneous on our part, suffice it to say that Dr. Scappatura testified unequivocally that there was no causal connection between the two.

Nelson does contend that the medical evidence established legal causation between his employment and the disease. He relies principally upon the testimony of Dr. Scappatura. Respondents assert that Dr. Scappatura's testimony was correctly interpreted by the hearing officer's finding that the doctor was unable to say that Nelson's employment was a precipitating factor of his condition.

Under the theory of legal causation, an employer takes his employee as he is, and if an employment related work accident aggravates a preexisting bodily condition, producing a further injurious result, the result of such aggravation is compensable. See State Compensation Fund v. Keefe, 22 Ariz.App. 311, 526 P.2d 1266 (1974); Royal-Globe Ins. Co. v. Industrial Commission, 15 Ariz.App. 242, 488 P.2d 178 (1971). It does not have to be shown that the work related accident was the sole cause of such aggravation; rather, it is sufficient if it can be shown to a reasonable medical probability that it was a producing cause. See Caganich v. Industrial Commission, 108 Ariz. 580, 503 P.2d 801 (1972); Murray v. Industrial Commission, 87 Ariz. 190, 349 P.2d 627 (1960).

With the foregoing principles in mind, we have reviewed the medical record. Dr. Scappatura explained that Raynaud's Disease is a disease affecting the vascular system, and is subject to periods of remission and exacerbation. He stated that the cause of the disease is unknown, but that there are certain predisposing or aggravating factors. According to his testimony, Raynaud's Disease has been described as a disease affecting people that use their hands a lot; that the use of vibrating tools by, for example, mechanics, would be an aggravating factor. Specifically, Dr. Scappatura stated that he would relate Nelson's use of vibrating tools as a mechanic with the fact Nelson's disease was symptomatic when he saw him. However, Dr. Scappatura's testimony additionally reflects that Nelson's Raynaud's Disease may well have been symptomatic on the left side when he started work for Harkers. Dr. Scappatura testified that he received from Nelson a history since 1967 of recurrent episodes of pain in the left arm, some coldness and some definite trophic changes of the left thumb. According to Dr. Scappatura, Nelson's condition had been getting progressively worse. Petitioner testified on the other hand, that he had had no problems with his left side from 1967 to the April...