Van Dyke v. Standard Acc. Ins. Co.

• Decision Date: 25 October 1962
• Docket Number: No. 7427,7427
• Citation: 92 Ariz. 173,375 P.2d 373
• Parties: William VAN DYKE, Petitioner, v. STANDARD ACCIDENT INSURANCE COMPANY, Defendant Insurance Carrier; the Stearn-Roger Manufacturing Company, Defendant Employer; the Industrial Commission of Arizona, Respondents.
• Court: Arizona Supreme Court

Page 373

375 P.2d 373

92 Ariz. 173

William VAN DYKE, Petitioner, v. STANDARD ACCIDENT INSURANCE COMPANY, Defendant Insurance Carrier; the Stearn-Roger Manufacturing Company, Defendant Employer; the Industrial Commission of Arizona, Respondents.

No. 7427.

Supreme Court of Arizona, In Division.

Oct. 25, 1962.

Jack T. Arnold, Tucson, Hirsch, Van Slyke, Richter & Ollason, Tucson, for petitioner.

Chandler, Tullar, Udall & Richmond, Tucson, for respondent Standard Acc. Ins. Co.

Donald J. Morgan, Phoenix, for respondent Industrial Commission.

BERNSTEIN, Chief Justice.

This is a review, by writ of certiorari, of actions of the Industrial Commission of Arizona. The petitioner, William Van Dyke, contends that the Commission erred in finding that the petitioner is physically able to perform the duties of a re-bar (reinforcing steel) worker on a full time basis, and that the Commission erred in refusing to consider certain evidence offered to show the nature of re-bar work.

Petitioner was involved in an industrial accident in 1958 while working as a structural steel worker. His claim for temporary disability compensation was processed, an award was made and the claim duly closed. On February 10, 1960, the petitioner filed application to reopen the claim, and in March 1960, the Commission made findings that the petitioner had sustained new, additional or previously undiscovered disability by reason of the 1958 injury. A series of hearings as to the nature and extent of petitioner's disability was held before the Commission between August 10, 1960 and May 10, 1961. On May 24, 1961, the Commission made Findings and Award for Unscheduled Permanent Partial Disability under A.R.S. § 23-1044(C) and (D). This award found that the petitioner had sustained a five percent general functional disability which prevented him from performing the duties of his occupation as a structural steel worker, but did not prevent him from performing the duties of a re-bar worker.

Petitioner made application for rehearing and on July 13, 1961, presented testimony by seven witnesses to the effect that re-bar work was physically harder, and placed more strain on the back than did structural steel work. This evidence was received subject to the respondents' objections, and on September 6, 1961, the Commission entered its order rejecting the evidence for the reason that the same evidence could have been produced by the exercise of reasonable diligence at the earlier hearings. The Findings and Award of May 24 were reaffirmed.

Petitioner's assignments of error present two questions: (1) Is the Commission's finding that petitioner's disability does not prevent him from performing the functions of a re-bar worker supported by the evidence? (2) Did the Commission err in refusing to consider the evidence given at the hearing of July 13, 1961?

The decisions of this Court which state that we will not weigh conflicting competent evidence presented before the Industrial Commission, but will look only to see if the Commission's findings are supported by any reasonable evidence are legion, e. g. McGee v. San Manuel Copper Corp., 89 Ariz. 244, 360 P.2d 1024 (1961); Valerio v. Industrial Commission, 85 Ariz. 189, 334 P.2d 768 (1959); McGill v. Industrial Commission, 82 Ariz. 36, 307 P.2d 1042 (1957). We have been equally clear that where there is no evidence in the record upon which the Commission could have based its finding, the award will be set aside, Hunter v. Industrial Commission, 73 Ariz. 84, 237 P.2d 813 (1951); Foley v. Industrial Commission, 73 Ariz. 82, 237 P.2d 812 (1951); Hobson v. Twentieth Century Fox Film Corp., 71 Ariz. 41, 223 P.2d 399 (1950).

In our view, these simple rules are dispositive of the case at bar, and we find it unnecessary to reach the second question raised by the petitioner. A review of the record shows that there is no evidence whatever upon which the Commission could base its finding that petitioner is able to do re-bar work. In reaching this conclusion it is not necessary to consider the evidence given at the July 13th hearing as this evidence was all in favor of petitioner's position that re-bar work is more strenuous than structural steel work.

The evidence concerning petitoner's physical disability was given by two expert witnesses called by respondents at hearings on August 10 and September 8, 1960. One of these witnesses testified:

'Q. Isn't there a probability that his condition would show further improvement with a further lapse of time * * *?

'A. [Dr. Christoper A. Guarino] Well, I feel that Mr. Van Dyke will improve, will always improve with time as long as he is not doing very heavy, strenuous work. But I think the likelihood is that every time he goes back and does real heavy, strenuous work, he has an excellent chance of again having difficulties. * * *

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'Q. Now I suppose you are familiar with the type of things that an ironworker has to do?

'A. Some, yes.

'Q. I mean do you think that a man with Mr. Van Dyke's back could climb steel columns, I mean shinny up them without the help of a ladder, pulling himself along day after day?

'A. I think that he could do it possibly once, twice, but I think over the long haul sooner or later that continuing to do this type of thing will start to produce symptoms.

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'* * * I would say that the type, the specific things in ironwork that would be detrimental to Mr. Van Dyke's back is tugging and pulling on the wrenches that they have to do in awkward, twisted positions. Probably he could do the same thing if he was stable on the ground with his feet under him, and in a straight position and not have as much trouble. But having to get into an awkward position and then do the same activities, the combination of those two factors is what is particularly bothersome to this type of a back.

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'Q. So it's from your examination and treatment of Mr. Van Dyke that it's your unqualified opinion that he must change his occupation?

'A. It would certainly be to his best advantage, yes.'

The second medical expert testified:

'[Dr. Warren D. Eddy, Jr.] It was felt the disability was primarily one which prohibits him from doing heavy work in precarious positions, such as his structual steel work. Other than that, it was felt the patient could be gainfully employed even at moderately heavy work. That was our general recommendation.

'Q. I want to be sure I understand it, Doctor. Am I correct that the restriction on heavy work is contingent on his doing it in precarious positions?

'A. Primarily we felt that because of the back in the condition it was, where it was as unpredictable as it was, that it was not very safe for him to be in a high place where he may be off balance. Even on level ground doing things off balance is apt to strain your back. Although he had a disability, we felt he could do moderately heavy work. That would presume he was in a position where he could control himself and do it correctly. It was our felling that in structural steel work you are not always in a position to lift and do things in a native nevironment. The same thing lifted up in the air is one thing, but it may not be as difficult down on the ground where you have you feet solidly planted. That statement does imply that his back is not very bad, and we thought he could do considerable manual moderately heavy work.'

Following the hearings at which the foregoing evidence was given it was suggested that the petitioner might be physically able to perform the duties of another branch of the ironworkers trade, re-bar work, with which he admitted he was familiar. Both sides produced testimony as to the nature of this work.

The principal witness for the respondents testified:

'Q. Is it [re-bar work] pretty hard work?

'A. Yes, it takes a strong back and a weak mind to be a re-bar man.

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'Q. Was I correct in my assumption that most re-bar work is done on the ground or on a deck?

'A. Re-bar will occur most any place. It is used to reinforce concrete, so any place you have concrete of find concrete within a building you will find reinforcing steel within it. You...