484 P.2d 36

Aaron A. WYNN, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Phoenix Newspapers, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 429.Court of Appeals of Arizona, Division One, Department A.
April 20, 1971. Rehearing Denied May 18, 1971. Review Denied June 15, 1971.

Petitioner sought writ of certiorari to review the lawfulness of an award of the Industrial Commission of Arizona, Claim No. BG 56343, finding that bilateral inguinal hernia was not compensable. The Court of Appeals, Case, J., held that award finding that a bilateral hernia, which sole medical witness testified was injury of sufficient severity to puncture or tear part of abdominal wall so that there was a protrusion or exposure of a part of the abdominal viscera and protrusion of part of the bladder fell within purview of statute declaring all hernias other than a real traumatic hernia to be not compensatory was not reasonably supported by the evidence.

Award set aside.[*]

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

Gorey Ely by Herbert L. Ely, Phoenix, for petitioner.

William C. Wahl, Jr., Counsel, Phoenix, for respondent The Industrial Comm. of Ariz.

Robert K. Park, Chief Counsel by Harlan J. Crossman, Phoenix, for respondent carrier State Compensation Fund.

CASE, Judge.

This case involves the question of whether a hernia suffered by the petitioner falls within the purview of Section 23-1043, subsec. 1 or Section 23-1043, subsec. 2 A.R.S. 1956.

On September 3, 1968, the petitioner slipped on some oil at his employer’s place of business causing his feet to go out from under him and occasioning pain in the area of his groin. On December 23, 1968, Dr. Patrick Phalen, a surgeon, examined the petitioner and diagnosed his condition as a bilateral inguinal hernia. The case was accepted for benefits and on March 13, 1969, the Commission issued a findings and award for temporary disability. This was timely protested and a hearing was held November 7, 1969. On January 28, 1970, the Commission entered a decision upon the rehearing and findings and award for temporary disability, finding that the accident fell within the provisions of Section 23-1043, subsec. 2 A.R.S. 1956. This appeal followed.

Section 23-1043, subsec. 1 states:

“Real traumatic hernia is an injury to the abdominal wall of sufficient severity to puncture or tear asunder the wall, and permit the exposure or protrusion of the abdominal viscera or some part thereof. Such injury will be compensated as a temporary total disability and as a partial permanent disability, depending upon the lessening of the injured individual’s earning capacity.”

Subsection 2 of the same statute reads:

“All other hernias, whenever occurring or discovered and whatsoever the cause,

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except as under paragraph 1 of this section, are considered diseases causing incapacitating conditions or permanent partial disability, but the permanent partial disability and the causes thereof are considered to be as shown by medical facts to have either existed from birth, to have been years in formation, or both, and are not compensatory, unless it is proved: * * *.”

Dr. Phalen was the sole medical witness. The pertinent parts of his testimony are as follows:

“A: * * * you asked me what we tried to accomplish we tried to repair this rent so to speak, in the abdominal wall, * * * (emphasis supplied)
“Q: I think you have answered this in somewhat medical terms and I would like to try to put it in a little more lay terms; you had testified you found there was a hernia, in fact a bilateral hernia?

“A: Yes.

“Q: Doctor was that and is that an injury to the abdominal wall?

“A: Yes.

“Q: Was the injury, just `Yes’ or `No’ is sufficient, of sufficient severity in this man to puncture or tear part of the wall?

“A: Yes, I would say so.

“Q: And was it also of such severity so there was a protrusion or exposure of a part of the abdominal viscera?

“A: Yes.

* * * * * *

“Q: But the bladder didn’t actually go through the abdominal wall?

“A: But part of it did.”

In response to a question concerning his examination of the pertinent statute, Dr. Phalen testified:

“You see that number two (meaning paragraph two) is congenital and number one is traumatic and he had number one, according to this definition.”

We said in the case of Sandoval v. Industrial Commission, 3 Ariz. App. 449, 415 P.2d 463 (1966), that the section governing compensation for hernia is sui generis and should be given a liberal construction in favor of the injured workman.

We find that the award of the Commission is not reasonably supported by the evidence.

Award set aside.

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

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