Schulze v. Industrial Commission

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN, C. J., and JENNINGS
• Citation: Schulze v. Industrial Commission, 381 P.2d 577, 94 Ariz. 35 (Ariz. 1963)
• Decision Date: 15 May 1963
• Docket Number: No. 7584,7584
• Parties: Jack D. SCHULZE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Arizona Silica Sand Company, Respondents.

Page 577

381 P.2d 577

94 Ariz. 35

Jack D. SCHULZE, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Arizona Silica Sand Company, Respondents.

No. 7584.

Supreme Court of Arizona, In Division.

May 15, 1963.

Alan Philip Bayham, Phoenix, for petitioner.

Donald J. Morgan, Phoenix, for respondent The Industrial Commission, Edward E. Davis, C. E. Singer, Jr., Lorin G. Shelley and Ben P. Marshall, Phoenix, of counsel.

YALE McFATE, Superior Court Judge.

This is a certiorari proceeding brought by Jack D. Schulze, claimant for benefits under the Arizona Workmen's Compensation Act, against the Arizona Undustrial Commission (herein called 'Commission'), and Arizona Silica Sand Company, in whose employ petition claims to have been injured. That part of the factual background about which there is no controversy is as follows:

On May 17, 1953, while petitioner was in the employ of Sanoline Oil and Gas Co. in Albuquerque, New Mexico (herein called Sanoline), he fell backwards in a swivel chair and injured his lower back. He did not respond satisfactorily to treatment and on May 17, 1958, he underwent an operation at the Veteran's Hospital in Albuquerque, for a spinal fusion. After wearing a body cast for six months followed by a body brace, he was discharged by his physician on April 1, 1959. After that he worked at his profession as a geologist and at related jobs off and on for varying periods of time until his employment on April 23, 1960, with Arizona Silica Sand Company, as manager of their plant south of Winslow, Arizona.

Claimant bases his claim on the alleged fact that on November 28, 1960, while inspecting some welding in the course of his employment, he slipped on some sand on a grizzley, fell backwards striking his lower back on the rails; that he felt sharp pain for several hours which finally subsided somewhat but he has suffered disabling pain since then and has been unable to follow his regular line of work.

At the time of this alleged accident petitioner had instituted and there was pending in New Mexico, an action against Sanoline as a result of the chair fall, and shortly prior to the alleged accident of November 28, 1960, he had arranged to submit to a physical examination by a Dr. Sidney Schultz (note difference in spelling--no relation to claimant) in Albuquerque, on behalf of Sanoline. The examination was conducted on November 30th at the appointed time. From his examination Dr. Schultz found that the patient's spinal fusion was not solid and that there was motion between the vertebrae involved, which was likely the cause of all his complaints.

During the course of these proceedings before the Commission, petitioner was examined amined by Drs. Juan E. Fonseca, Warren D. Eddy, Jr. and Stanley S. Tanz. They filed a joint report, concluding that his symptoms were due in part to the previous back disease and failure of fusion following the surgery of 1958, and that the injury of November 28, 1960, aggravated that disability. The estimated a 5% general functional disability as a result of the latter accident, 'if the history is dependable.'

On June 27, 1961, petitioner went to see Dr. Wendell C. Peterson in New Mexico for further advice and treatment and called him as a witness in his behalf. Dr. Peterson concluded that the accident of November 28, 1960 resulted in 'a superimposed injury on an existing area of injury and surgery, with the probability of disc injury in the third lumbar interspace which is one space above the one previously injured.' This opinion was, in his words, 'based on the patient's statement that he was free of pain up to the time of the accident and able to carry on work and from that time on he was required to seek medical attention and was unable to carry on his usual activities. It is an entirely subjective observation.'

The commission, at the conclusion of extended hearings, made its findings that Schulze (1) 'did not sustain an accidental injury as claimed causing his disabilities' and that (2) 'all of his disabilities, if any, are the result of prior injuries or disabilities sustained before his employment with defendant employer.'

These findings, petitioner claims, are erroneous. He relies on the well established proposition of law that where there is no substantial evidence to support the findings and award the Supreme Court will set the award aside.

The probative value of the medical opinions in this case which relate the petitioner's symptoms to the accident of November 28, 1960, depend entirely on the validity of the medical history upon which those opinions were based. If that history is true, then Schulze did sustain a disabling accidental injury, and the unanimous medical opinion would require a finding that such injury caused at least a part of his disability. In these circumstances the award should be set aside. On the other hand, if the history is false, or if the evidence is conflicting to the extent that reasonable men might differ as to its probative effect, this Court should sustain the Commission. The precise question is, whether there was evidence from which reasonable men might conclude (as the Commission apparently did) that Schulze (1) did not slip and fall and sustain a back injury on November 28, 1960, or (2) that he was in no worse condition after the alleged accident than he was before.

Petitioner filed an affidavit with the Commission in which he stated:

'* * * two days following injury I went to Dr. Sidney Schultz who took x-rays and diagnosed my injury. He advised me I should be treated in Arizona since this was an industrial injury.'

Dr. Schultz, by letter of April 4, 1961, informed the Commission that on the occasion of the examination, November 30, 1960, petition did not mention to him that two days prior thereto he had sustained a back injury, and he did not inform petitioner he should be treated by an Arizona physician.

A. Mr. Fallon, who became the employer's manager on January 1, 1961, stated petitioner did not mention an alleged accident to him and that Schulze left on January 7th, saying he had busines in Phoenix and Tucson and that he would be back on January 10th. He did not return to work, but was...