Phelps Dodge Corporation v. DeWitt

• Decision Date: 22 October 1945
• Docket Number: Civil 4798
• Citation: 162 P.2d 605,63 Ariz. 379
• Parties: PHELPS DODGE CORPORATION, Petitioner, v. WALDO DeWITT, and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents
• Court: Arizona Supreme Court

162 P.2d 605

63 Ariz. 379

PHELPS DODGE CORPORATION, Petitioner, v. WALDO DeWITT, and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

Civil No. 4798

Supreme Court of Arizona

October 22, 1945

APPEAL by Certiorari from an Award of The Industrial Commission of Arizona.

Award affirmed.

Messrs Ellinwood & Ross, and Mr. William A. Evans, for Petitioner.

Mr John R. Franks, and Mr. H. S. McCluskey of Counsel, for Respondents.

LaPrade J. Stanford, C. J., and Morgan, J., concurring.

OPINION

LaPrade J.

This proceeding is before us on certiorari from an award of the Industrial Commission awarding compensation to Waldo DeWitt, the injured employee. The Phelps Dodge Corporation, the employer, is the petitioner securing this review. The facts of the case are not in dispute and may be stated as follows: The employee, while engaged in the usual course of employment, suffered an injury to his back occasioned in the following manner. DeWitt picked up a rim mounted but deflated truck tire, which is estimated to have weighed at the time 70 to 100 pounds; took one step; threw and pushed the rim and tire up into the truck. At this moment, he experienced what he described as -- "felt like a hot iron hit me in the back of the head; like the world was whirling around, and everything went blank." He turned and walked unsteadily to a nearby bench; sat down; broke into sweat and tremors; and, in a faint condition, eased off the bench to the ground. He was taken promptly by automobile to the office of a doctor, and on the way complained of pain in his head and arms. On arrival at hospital he was in a state of shock, and afflicted with tremor in both his right arm and right leg. Shortly thereafter he filed a claim for workmen's compensation, claiming disability as a result of partial paralysis of the right side, which condition persisted for at least six months. He was treated by seven different doctors including three neurologists. Various inconclusive hypotheses were suggested as to the neurological sources of the symptoms manifested. There was some disagreement as to the extent of disability, but no indication was found of physical injury from external cause. The medical evidence indicates that the employee suffered some internal strain, sprain, rupture, or hemorrhage.

Two months after the incident, he was examined by Dr. A. C. Kingsley, nerve specialist. His report, in part, read as follows:

"Sudden onset with unconsciousness would indicate cerebral or high cervical lesion. There is at this time sensory disturbance involving the third and fourth cervical roots as well as the lower cervical area. Whether at time of injury a partial dislocation or hemorrhage high in cervical cord it is difficult to state."

There was nothing unusual in the manner of picking up the tire and rim. No apparent overexertion was involved; no untoward or unexpected event took place, such as slipping, falling, or being struck. The claimant, prior to the accident, had enjoyed good health, and was strong and accustomed to performing hard manual labor. There is no evidence in the record to indicate that the employee was suffering from any preexisting disease or ailment.

In challenging the award, the petitioner advances the following proposition: "In order that an employee be entitled to compensation, there must be an injury which is caused by some external event of an unusual or unexpected nature." Petitioner calls attention to the various code sections which limit compensation to cases where the employee has sustained an "injury by accident and arising out of and in the course of his employment." Code 1939, § 56-930 (Emphasis supplied.) It is petitioner's position that this case is ruled by Rowe v. Goldberg Film Delivery Lines, Inc., 50 Ariz. 349, 72 P.2d 432, which with other decisions of this court followed Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017. On the other hand, respondent, in its brief, contends that the Pierce case in effect was overruled by In the Matter of Mitchell, 61 Ariz. 436, 150 P.2d 355, and that the latter case is controlling here.

Here it might be well to indicate that in the Pierce case the employee was suffering from pre-existing myocarditis, of which he was aware. Additional facts in the Pierce case were that during the morning Pierce climbed up and down ladders in the mine without showing any bad effects or making any complaint. When the noon hour arrived, he sat down to eat his lunch and had just finished the meal when he arose from a sitting or reclining position, walked a few hundred feet, suddenly collapsed, and died a few moments later.

In the Rowe case the employee leaned over to pick up two boxes of films, at which time he experienced a pain in his chest, and suffered a spontaneous pneumothorax. There the chief concern of the court was to determine whether or not there had been an injury by accident. We have at no time held or even indicated that compensation is payable other than for injury by accident.

The provisions of the Workmen's Compensation Law of Arizona directing compensation to be paid injured employees are embodied in Sections 56-930, 56-931, 56-936, and 56-952, Arizona Code Annotated 1939. Each of these sections limits compensation to cases where the employee has sustained an "injury by accident arising out of and in the course of his employment."

This requirement, of injury by accident, has been before the court on more than one occasion. In Pierce v. Phelps Dodge Corp. et al., 42 Ariz. 436, 26 Pac. (2) 1017, 1018, involving the question of whether death from a pre-existing heart disease, accelerated by the ordinary and usual conditions of the occupation of the employee, was subject to compensation, the court discusses the language of Section 56-930 and particularly the phrase "injured by accident," saying:

"We come then to the interpretation of the phrase 'injured . . . by accident' as used in the Compensation Act, and particularly of the word 'accident.' . . . The word 'injured,' when used as a participial adjective as it is here, is defined by Webster as 'damaged.' The word 'accident' is, by the same authority, 'an event that takes place without one's foresight or expectation; an undesigned, sudden and unexpected event.'

" It is obvious that while 'injured' always implies a result, the word 'accident' may mean either a cause or a result, and which it is must be determined by the context. The proposition 'by,' which is found between the word 'injured' and the word 'accident,' supplies the answer. Used as it is, it can only mean 'by medium of, in consequence of, or through the agency of,' and the 'accident' is, therefore, the cause of the injury.

. . .

"We conclude that on reason, notwithstanding there are many authorities to the contrary, in the phrase 'injured . . . by accident' as found in our Compensation Act, the word 'accident' refers to the cause of the injury and not to the injury itself.

"Following this rule, in order that an employee be entitled to compensation there must be a result, an injury or damage, which is caused by 'an event that takes place without one's foresight or expectation; an undesigned, sudden and unexpected event.'"

And in applying the above interpretation of the phrase to the facts involved in the Pierce case, the court, in the concluding portion of its opinion, said:

"Applying this rule to the facts of the present case, there is no unexpected event which caused an injury, which injury resulted in a disease or an aggravation thereof. On the contrary, the events which preceded the death of Pierce, and, as urged by claimants, accelerated it, were the usual, ordinary, necessary and expected incidents of his occupation. It is true that the death from the disease was sudden and unexpected, but as we have stated the undesigned, sudden, and unexpected event which must exist in order to create the right to compensation must be found in the original cause and not in either of the subsequent results. . . ."

In sustaining the award denying compensation in the Rowe case, the court said [50 Ariz. 349, 72 P.2d 434]:

". . . It is only when there is some unusual, unexpected, and extraordinary event not reasonably contemplated as a part of the normal conditions of the employment, which causes an injury, that compensation is awarded.

. . .

"If on the other hand, there is no accident, such as a slip or fall, and it is merely the ordinary shifting of packages required by the business which, due to the physical condition of the petitioner or any other reason not involving an accident as we have defined it, causes the injury, he cannot recover compensation. . . ."

The court then went on to apply the principles announced to the facts involved, saying:

"If, it be true that there was no sudden or unexpected jerk, slip, or fall which caused the spontaneous pneumo-thorax, but that it merely arose out of the usual, ordinary, necessary, and expected incidents of petitioner's occupation, such as lifting and moving the packages which he had in his truck, the injury he suffered was not compensable, because it resulted from the ordinary course of his occupation and not from an accident occurring therein."

In the Mitchell case, we determined that, in law, there had been an accident, and that injury and death flowed therefrom. In so doing, we pointed out that the facts establishing the occurrence of the accident did not fit into the definition of "accident" as given in the Pierce case. We concluded that it was not indispensable to an accident that it should arise from a sudden or instantaneous event or occurrence and presumably accompanied by an external act or occurrence. Nevertheless, we pointed out in the Mitchell case that the Pierce case had been correctly...