Phoenix Bakery v. Industrial Commission of Ariz., 5934

• Decision Date: 14 December 1954
• Docket Number: No. 5934,5934
• Parties: PHOENIX BAKERY, Incorporated, defendant employer, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA; B. F. HILL, F. A. Nathan, and A. R. Kleindienst, as members of The Industrial Commission of Arizona, and Mary Marguerite Gustin, Respondents.
• Court: Arizona Supreme Court

Page 745

277 P.2d 745

78 Ariz. 188

PHOENIX BAKERY, Incorporated, defendant employer, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA; B. F. HILL, F. A. Nathan, and A. R. Kleindienst, as members of The Industrial Commission of Arizona, and Mary Marguerite Gustin, Respondents.

No. 5934.

Supreme Court of Arizona.

Dec. 14, 1954.

Snell & Wilmer, Perry M. Ling, Phoenix, for petitioner.

John R. Franks, Phoenix, for respondent, The Industrial Commission of Artizona, (Donald J. Morgan, and Robert K. Park, Phoenix, of counsel).

PHELPS, Chief Justice.

Petitioner, employer-defendant, seeks by way of certiorari to have this court set aside an award of the Industrial Commission made on the 30th day of April, 1954, denying petitioner's application for a rehearing and affirming its amended findings and award made and entered in said proceeding on March 29, 1954, in which it found that decedent George Gustin, husband of claimant, suffered an injury on June 11, 1953, by accident arising out of and in the course of his employment from which he died the same day and awarding claimant compensation therefor.

The facts will be more fully developed hereafter in this opinion as it will be necessary to analyze the evidence in the case in determining whether the findings and award of the commission can be sustained.

Petitioner has presented no assignments of error but bases its claim upon three propositions of law, first, that routine exertion in the course of employment does not constitute accidental injury; second, that death from heart condition is not compensable under our compensation act unless it is proved that it was precipitated by some accidental injury as its proximate cause; and third, that the findings of the Industrial Commission are to be given the same consideration as those of a jury or a trial judge, and when there is reasonable evidence to support an award or reasonable men might draw either of two inferences from the fact, the commission's findings must be sustained.

We agree with propositions of law Nos. 2 and 3 and with some reservations, accept proposition of law No. 1 as fairly stating the law. It cannot be said, however, to apply in every case. For example, in Vukovich v. Industrial Commission, 76 Ariz. 187 261 P.2d 1000, 1002, we quoted with approval from Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 520, 6 A.2d 396, 401, the following:

"* * * The requirement that the injury or death arise by accident, under our statute, is satisfied if the client discharged the burden of proving that the condition complained of, i. e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred."

The Vukovich case involved a claim for compensation for the death of decedent resulting from a heat stroke and we held in that case that a heat stroke was caused by an accident which arose out of and in the course of employment of decedent; that the decedent in unloading lumber from a truck was more exposed to injury by heat stroke than others in the locale. We expressly held that the injury arose by accident arising out of and in the course of his employment. This view on that subject is supported in many jurisdictions. In Alexander Orr, Jr., Inc., v. Florida Industrial Commission, 129 Fla. 369, 176 So. 172, 173, the court said:

"If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute."

An examination of the New Jersey and Florida statutes indicate that they are essentially the same as our section 56-931, A.C.A.1939.

The rule laid down in In re Mitchell, 61 Ariz. 436, 150 P.2d 355, in which the decedent met his death by inhaling carbon tetrachloride as it evaporated from use in cleaning contracts or terminals in switchboard relays of the Mountain States Telephone and Telegraph Company by whom he was employed, occurred when he was engaged in the routine performance of his duties as such employee. We held in that case that the injury was the result of an accident arising out of and in the course of his employment.

As we understand the position of petitioner in the instant case it is claimed that although the injury arose during the course of his employment it neither arose out of his employment nor occurred by reason of an accident. We are inclined to the view that petitioner has not given due weight to the testimony of a number of witnesses including that of Dr. Maurice Rosenthal, several employees of petitioner, and Judge Al Flood of West Phoenix Precinct Justice Court and ex officio coroner.

A post mortem examination was performed by Dr. Daniel Condon on June 12, 1953, and witnessed by Dr. Rosenthal, a report of which was made by Dr. Rosenthal on June 22, 1953, and filed with the Industrial Commission on July 6 following. According to this report the internal examination of decedent disclosed a congestion and pulmonary edema of the lungs associated with an enlarged heart weighing twice the normal weight and the coronary arteries presented a rather marked degree of arteriosclerotic change with narrowing and occlusion of some of the arteries. There was some congestion of the liver. The kidneys showed a severe congestion and the brain showed a slight congestion. It was said no other lesions of significance were found. The conclusions reached by Dr. Rosenthal were that the findings were consistent with acute myocardial failure associated with coronary sclerosis. The report also stated that '* * * the skin did not reveal any histological evidence (structural evidence) which would lead one to suspect that these lesions were due to an electric shock.' It continued:

'* * * It is possible that the added strain of climbing up on a platform by Mr. Gustin to perform his work added sufficient strain upon his heart to precipitate an acute episode.

'There is no anatomical evidence that an electric shock was the cause of the immediate exodus of this subject.'

In his testimony given at a hearing on October 13, 1953, Doctor Rosenthal stated it was his opinion Mr. Gustin suffered a heart attack while he was apparently on the platform and on sliding down he fell and bruised his chest. He testified that he thought it would be possible for an electric shock to precipitate a heart attack. he was asked if decedent received an electric shock and then fell to the floor (roof) of the inventory box approximately four to five feet below the girder on which decedent was standing, if in his opinion it would precipitate an attack if his heart was in the condition as the heart he described in his autopsy, to which he replied:

'Yes, any excessive strain might precipitate a heart attack either emotional or physical.

'Q. Then it is your opinion that an electric shock or a fall that distance or heat while working in that kind of place could have precipitated a heart attack? A. Yes.

'Q. Did you make an examination of the hands of the deceased, Doctor? A. I believe I did, yes.

'Q. Do you recall what they appeared as? A. As I recall there weren't any marks of any significance.

'Q. Do you recall the color of the hands, the palms particularly? A. I don't have them in my notes, but apparently I wasn't impressed by any findings on the hands.

'Q. Would an electric shock, Doctor, necessarily leave any marks on the skin? A. No, nor necessarily; they usually do.

'Q. And if after receiving an electric shock through the use of say an ordinary drill and voltage, if a person died within a few seconds thereafter, would there be, normally, any blistering or mark on the person where the electricity entered the body? A. There may or may not be, it depends on the resistence of the skin.

'Q. Then there is not a certainty that there would be or wouldn't be?' A. That is correct. * * *'

'Q. In your opinion could Mr. Gustin from the fall and the injury he suffered to his chest, could that fall and injury have precipitated his heart attack? A. Yes, I am afraid I would have to say any emotional stress or strain can precipitate a heart attack in an individual with a heart of this type.'

He further testified that the voltage through a light socket in the wall of a house could induce the heart to have a sudden spasm. He said he thought any sudden shock, emotion, physical or electrical might precipitate a heart attack to a heart such as Mr. Gustin had.

Doctor Daniel J. Condon who performed the post mortem examination testified it was his opinion decedent died as a result of hypertensive arterio-sclerotic heart disease. He stated he couldn't establish any relationship between possible electric shock and the death. He observed three bruises over the back, one was of a purple blue appearance located on the left side of back roughly at the level of the 5th thoracic vertebra extending to the 7th thoracic vertebra originating at the midline and extending slightly to the left 7 X 4 centimeters in size. (2.5 centimeters to the inch). Four centimeters to the right side of the middle line of the back was a similar bruise at the level of the...