Paulley v. Industrial Commission

• Citation: 91 Ariz. 266,371 P.2d 888
• Decision Date: 31 May 1962
• Docket Number: No. 7304,7304
• Parties: Elmer PAULLEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and McGraw-Edison Company (International Metal Products, Division of McGraw-Edison Company), Respondents.
• Court: Arizona Supreme Court

Page 888

371 P.2d 888

91 Ariz. 266

Elmer PAULLEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and McGraw-Edison Company (International Metal Products, Division of McGraw-Edison Company), Respondents.

No. 7304.

Supreme Court of Arizona, In Banc.

May 31, 1962.

Ira J. Bergman and Roy R. Carson, Phoenix, for petitioner.

Donald J. Morgan, Phoenix, for respondent, The Industrial Commission of Arizona.

Shimmel, Hill, Kleindienst & Bishop, Phoenix, for respondent, Employer McGraw-Edison Company (International Metal Products, Division of McGrew-Edison Company).

Edward E. Davis, C. E. Singer, Jr., Lorin G. Shelley and Ben P. Marshall, Phoenix, of counsel.

UDALL, Vice Chief Justice.

By certiorari petitioner seeks review of an award denying him compensation for disability due to the loss by amputation of his right leg.

Petitioner suffered from and had been treated for diabetes since 1950. He began working for International Metal Products, Division of McGraw-Edison Company in Phoenix in 1956. Originally classified as a press operator, petitioner was reclassified as a material handler and transferred to the scrap yard on July 11, 1960. There his duties consisted of moving barrels and sweeping and picking up pieces of cardboard and metal scraps.

In performing these tasks petitioner was necessarily on his feet walking around the concrete yard almost all of the time. During the period in question (July 1960) the yard temperature was often about 110~. And this heat was intensified by reflection from the shining metal scraps strewn about the yard.

Upon returning home at the end of the working day of July 14, 1960, petitioner noticed that a blister had formed on the ball of his right foot. The next morning he reported to the plant nurse who, after learning of his diabetic condition, advised petitioner to see his physician, Dr. Brewer, as soon as possible. Dr. Brewer was first able to see petitioner on July 16th at which time the blister was cleaned, dressed and protected by a foam rubber doughnut. Petitioner informed Dr. Brewer that he was soon to go on vacation to Kentucky, whereupon the doctor admonished him to keep the blister clean and to watch carefully for any signs of infection. At this time (July 16, 1960) petitioner's 'diabetes was well controlled' and his blood circulation in the lower extremities 'was good.'

Wearing the bandage and doughnut petitioner continued to work in the yard until July 29, 1960 at which time he and his wife left Phoenix by bus for a two week vacation in Kentucky. On Monday (August 8th) of the second week of vacation petitioner noticed that the blister had broken. He washed and redressed the opening--but on Friday, August 12th, the blister had peeled off and in its place was a small black spot. Alarmed, petitioner immediately instructed his wife to secure bus reservations for the trip home. They arrived in Phoenix on the night of August 16th.

The next morning, August 17th, Dr. Brewer examined petitioner's foot and found an area of gangrene where the blister had been. 'The entire foot * * * was swollen, and hot, red.' On Dr. Brewer's orders petitioner was hospitalized the same day and on August 26, 1960 his leg was amputated below the knee.

On August 30, 1960 the commission, after informal hearing, entered an award denying compensation under the Occupational Disease Law on the ground that the blister on petitioner's foot 'was not due to the use of tools or appliances.' ¹ Instead the commission found 'that the blister which developed on the bottom of applicant's right foot was caused from working on hot concrete all day.'

Thereafter petitioner filed a workmen's report and an application for benefits under the Workmen's Compensation Act. A full hearing was held on November 29, 1960 after which on February 9, 1961 the commission entered its 'Decision Upon Rehearing and Order Affirming Previous Findings [of August 30, 1960] and Award [for noncompensable claim.].' Petitioner then applied for a rehearing and on March 20, 1961 the commission entered its 'Amended Decision Upon Rehearing.'

On appeal petitioner contends that he is entitled to benefits under the Workmen's Compensation Act only and argues that the following findings in the commission's decision of March 20, 1961 are not supported by substantial evidence:

'3. That * * * applicant did not sustain a personal injury by accident arising out of and in the course of his employment within the meaning of the Workmen's Compensation Act.

'4. That said applicant's disablement, to-wit: loss of right leg below the knee, was not the result of any accident or compensable occupational disease, but due to pre-existing condition and applicant's failure to promptly seek medical care when his condition became critical.'

A.R.S. § 23-1021, subd. A provides in pertinent part that 'Every employee coming within the provisions of this chapter who is injured * * * by accident arising out of and in the course of his employment * * * shall be entitled to * * * compensation * * *.' (Emphasis added.) The commission's brief on appeal is essentially limited to the assertion '* * * that there was no unusual, undesigned, unexpected event in the case; that nothing took place on or in the body in the way of a sudden, disabling disarrangement * * *' that would qualify as an injury 'by accident.' And in support of this contention the commission apparently relies on the rule of Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017 (1933).

In Pierce this court reviewed an award denying compensation to the widow of a mine foreman whose death from acute myocarditis '* * * was accelerated at least to some degree by the ordinary and usual conditions of the work * * * but not by any sudden or extraordinary strain or fortuitous happening.' 42 Ariz. at 441, 26 P.2d at 1019. Inclusion of the preposition 'by' in the statutory phrase was held to be conclusive of the legislature's intent that "accident' refers to the cause of the injury and not to the injury itself.' 42 Ariz. at 445, 26 P.2d at 1021. Accordingly, a compensable industrial injury had to be the result of some unexpected external event which was separate and distinct from the injury itself. Such an ascertainable 'event' being absent the award was affirmed.

In thus emphasizing the dictionary meaning of 'by accident' Pierce departed from the theretofore accepted meaning of that phrase as interpreted by the House of Lords in Fenton v. Thorley & Co., (1903) A.C. 443 and again in Clover, Clayton & Co. v. Hughes (1910) A.C. 242. Fenton suffered a rupture while attempting to move a stuck wheel on a machine, and Hughes died from an aneurism which burst while he was tightening a nut with a spanner. In neither case was there any sudden, unexpected and external event which could be isolated and identified as the 'cause' of the injury. Nor were either Fenton or Hughes exerting themselves in an extraordinary manner when the injuries occurred. But compensation was held proper in both instances. ² Thus, Professor Larson writes that:

'Well before any American states copied the 'injury by accident' terminology of the British Act, it was settled beyond question in England that such a claim was compensable, on the theory that, although the cause was routine and not accidental, the effect on the employee was unexpected and catastrophic, and therefore accidental.' 1 Larson's, Workmen's Compensation Law, § 38.10 (1952) at 517. ³

Eleven years after Pierce an award of death benefits to the widow of a telephone company repairman who died of carbon tetrachloride poisoning was sustained in Matter of Mitchell, 61 Ariz. 436, 150 P.2d 355 (1944). Mitchell had used the carbon tetrachloride in cleaning certain equipment and over a period of time had absorbed too much. Concluding that there was sufficient evidence to establish the causal relationship between use of the solution and Mitchell's death this court went on to hold that:

'* * * anything we may have said in the Pierce case to the contrary notwithstanding * * * there was an injury by accident in this case within the meaning of the Arizona Law, as now interpreted, in that the inhalation by the deceased of the fumes from the use of the poisonous carbon tetrachloride, under the circumstances heretofore stated, produced effects that were not intended, foreseen or expected.' 61 Ariz. at 452-453, 150 P.2d at 361. (Emphasis added.)

In Mitchell this court also pointed out that the Pierce decision had given '* * * too little weight * * * to the peculiar and appropriate meaning in the law * * * of the phrases such as 'injured * * * by accident' and 'accident' appearing in our compensation law, which phrases had a well-defined and well-understood meaning at the time of the enactment of our Workmen's Compensation Act.' ⁴

The Mitchell interpretation of 'injury by accident' has been followed by this court in numerous decisions since 1944. See Phelps Dodge Corp. v. DeWitt, 63 Ariz. 379, 162 P.2d 605 (1945) (affirmed award for back injury incurred while doing routine lifting); Vukovich v. Industrial Commission, 76 Ariz. 187, 261 P.2d 1000 (1953) (set aside award denying death benefits to widow of construction worker who died of heat stroke); Jones v. Industrial Commission, 81 Ariz. 352, 306 P.2d 277 (1957) (set aside award denying death benefits where coronary occlusion of highway worker resulted from ordinary exertion on the job); Dunlap v. Industrial Commission, 90 Ariz. 3, 363 P.2d 600 (1961) (set aside award of noncompensable claim to construction worker who suffered from pneumonia brought on by escaping fumes from defective tractor exhaust system). ^4a

In 1955 the question was apparently settled once and for all by the decision of this court in Phelps Dodge Corp. etc. v. Cabarga, 79 Ariz. 148, 285 P.2d 605 (1955). There we affirmed an award granting death benefits to the widow and children of a slag switchman who died from a coronary occlusion occasioned by routine...