SMITH v. INDUSTRIAL COMMISSION, 13 Ariz. App. 25 (1970)

473 P.2d 827

Gerald D. SMITH, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Edward J. Veseley (Ed’s Servicenter), Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 312.Court of Appeals of Arizona, Division One, Department A.
September 1, 1970.

Writ of certiorari to review lawfulness of award of Industrial Commission, claim No. BD 15405, that petitioner was entitled to compensation for total temporary disability but not for permanent disability and loss of earnings. The Court of Appeals, Cameron, J., held that claimant failed to sustain his burden of showing that his disability and resulting surgery was result of 1966 industrial injury in which he suffered tenderness at dorsal-lumbar junction and mild compression fracture of 12th dorsal vertebra rather than 1958 army injury in which he suffered acute herniated intervertebral disc and hypermic nerve root.

Award affirmed.

Strickland, Altaffer, Davis Eppstein, by Robert W. Eppstein, Tucson, for petitioner.

Donald L. Cross, Chief Counsel, Phoenix, for The Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, Phoenix, by Dee-Dee Samet, Tucson, for respondent carrier.


This is a writ of certiorari to review the lawfulness of an award and findings of the respondent Industrial Commission of Arizona which held that the petitioner, Gerald D. Smith, was entitled to compensation for total temporary disability, but was not entitled to an award for permanent disability and loss of earnings.[1]

We are called upon to determine whether the award is reasonably supported by the evidence.

The facts necessary for a determination of the matter are as follows. Petitioner received a serious back injury while serving overseas with the United States Army in 1958. He suffered an acute herniated intervertebral disc at the L 4-5 level. A large herniated disc was removed but he still suffered from sciatic pain and a re-exploration was made which found the nerve root was hypermic. He was sent back to the United States and a lumbarsympathectomy was performed in 1960 at Walter Reed Hospital.

Petitioner was hired in early 1965 by respondent employer and worked for 15 months in respondent’s service station. On 11 April 1966, while bending over to pick up a money bag, he had a sharp pain in his back. On examination it was noted he had sharp tenderness at the dorsal-lumbar junction and the x-rays showed a mild compression fracture of the 12th dorsal vertebra. He was treated at the expense of the Fund. He was later treated by the Veteran’s Administration which treatment included an exploratory operation.

Hearings were held at the request of the petitioner after which, over the objection of petitioner’s attorney, the file was reviewed

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by a medical advisory board. The board consisted of five doctors including two orthopedic specialists. The board reported as follows:

“It is the opinion of this Board that the industrial accident of 4-11-66 did not aggravate the applicant’s preexisting condition. This is substantiated by the fact that the patient was having symptoms before the injury of 4-11-66. His injury occurred in a different level of the spine than previously. He was better at rest, and his symptoms in his lower back and right leg only became aggravated after he was recovering from the injury to his upper lumbar spine.
“The industrial accident of 4-11-66, in our opinion, did not contribute to the necessity of surgery which the applicant had in November 1966. The above reasons would indicate that the industrial accident did not aggravate the condition and, therefore, did not contribute or aggravate the back sufficient to necessitate surgery. It is felt that his surgery was a direct result of the original injury in November of 1958 and subsequent developments to that time.
“On the basis of the above facts, it is felt that there is no evidence of any permanent disability due to the industrial accident of 4-11-66.”

Four of the five members of the medical consultation board were cross-examined at a later hearing at the request of the attorney for the petitioner. Although there is admittedly a conflict in the evidence, we do not feel that the petitioner has sustained his burden of showing that his present disability is the result of his industrial injury. Our Supreme Court has stated:

“* * * Where the result of an accident is not one which is clearly apparent to a layman, such as the loss of a limb or external lesion, the physical condition of an injured employee after an accident and the causal relation of the accident to such condition usually can only be determined by expert medical testimony. * * *” Waller v. Industrial Commission, 99 Ariz. 15, 20, 406 P.2d 197, 200

The award is reasonably supported by the evidence.

Award affirmed.

DONOFRIO, P.J., and STEVENS, J., concur.

[1] This case was decided under the law as it existed prior to 1 January 1969.

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