Wiggins v. Pratt-Gilbert Hardware Co., Civil 3756

• Decision Date: 16 November 1936
• Docket Number: Civil 3756
• Citation: 48 Ariz. 375,62 P.2d 124
• Parties: H. R. WIGGINS, Petitioner, v. PRATT-GILBERT HARDWARE CO., Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents
• Court: Arizona Supreme Court

62 P.2d 124

48 Ariz. 375

H. R. WIGGINS, Petitioner, v. PRATT-GILBERT HARDWARE CO., Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents

Civil No. 3756

Supreme Court of Arizona

November 16, 1936

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

Mr Emil Wachtel, for Petitioner.

Mr. Don C. Babbitt, and Mr. Howard A. Twitty, for Respondent Industrial Commission of Arizona.

OPINION

LOCKWOOD, C.J.

H. R Wiggins, hereinafter called petitioner, filed a claim with the Industrial Commission of Arizona, hereinafter called respondent, alleging that he had received an injury by an accident arising out of and in the due course of his employment, and asking for compensation under the Workmen's Compensation Law (Rev. Code 1928, § 1391 et seq.) therefor. A hearing was held informally, and on the 31st of January, 1936, the commission made its findings as follows:

"1. That on or about the 15th day of November, 1935, the above named applicant was in the employ of the above named defendant employer, who was insured against the liability imposed by said law by the above named defendant insurance carrier.

"2. That said applicant alleges to have sustained an injury by accident arising out of and in the due course of his said employment on or about said November 15, 1935.

"3. That the evidence is insufficient to establish that said applicant sustained any injury by accident arising out of and in the course of his said employment on or about said date";

and ordered that the petitioner take nothing by reason of his claim. An application for rehearing was duly made, granted and had on March 11th. At this time, the petitioner, his wife, and one Frank Gardner, a fellow workman, and Dr. E. Payne Palmer, appeared and were examined and cross-examined in regard to the alleged accident and injury.

The undisputed facts shown by the evidence were as follows: Petitioner was employed by the Pratt-Gilbert Hardware Company as a common laborer, and on the date of the alleged accident was engaged in cleaning certain machinery. He was working on a pump, and, in the course of his labor, lifted it to place it on some planks so he could better clean it. Both his hands and the pump were somewhat greasy, and it started to slip. In order to prevent its falling, he twisted himself in an abnormal position, and felt something give way inside him, and fell over on the pump. He was nauseated and unable to walk for a few minutes, but finally got up and told his fellow workman, Frank Gardner, that he was very ill and would have to go home, but before he could reach his home he felt so much worse that he asked to be taken to the hospital. This was done and shortly thereafter he was operated upon. He was in the hospital from the 15th until the 27th of November, when he returned home, but, feeling worse, he again returned to the hospital on the 6th of December, and was discharged on the 23d. His testimony in regard to the lifting of the pump and his conduct immediately thereafter was confirmed by Frank Gardner and, indeed, there is no contradiction thereof. He was operated upon by Dr. J. H. Patterson, of Phoenix. When his claim for compensation was presented to the commission, the matter was referred to the Medical Advisory Board. Dr. E. Payne Palmer, one of the members of the board, gave him an external physical examination on December 8th, and examined by various X-rays which had been taken of him, and also studied the hospital records of the case, and consulted with Dr. Patterson and petitioner. Dr. Palmer's findings and conclusions were stated by him as follows:

"That, he had a pathological process before and the condition which developed would have developed whether he had been at rest or was lifting or in any other position he might have been in at that particular time."

The whole case was then submitted by him to the Medical Advisory Board, and, after considerable consultation and deliberation, they came to the following conclusion:

"The case of Mr. Wiggins, operated for ruptured duodenal ulcer by Dr. Patterson and reported by him as due to accidental injury was discussed. Dr. Patterson appeared before the committee and explained the surgical findings and his reasons for believing this to be an industrial injury due to overexertion. After...