Opinion
No. 1 CA-IC 335.
April 6, 1970.
Certiorari to review award of Industrial Commission of Arizona, Claim No. BG 26903, which held that petitioner had not sustained accident arising out of and in the course of his employment. The Court of Appeals, Cameron, J., held that petitioner who was treated for low back sprain, had failed to sustain his burden of proving that he suffered accident arising out of and in the course and scope of his employment.
Affirmed.
Spencer K. Johnston, Phoenix, for petitioner.
Donald L. Cross, Chief Counsel, Phoenix, Industrial Commission of Arizona, Robert K. Park, Chief Counsel, by R. Kent Klein, Phoenix, for respondent Carrier State Compensation Fund.
This is a writ of certiorari to review the lawfulness of an award and findings of the Industrial Commission issued 20 August 1969 which held that the applicant did not sustain an accident arising out of and in the course of his employment.
This case was decided under the law as it existed prior to 1 January 1969.
The facts necessary for a determination of this matter are as follows. At 8 a.m. on 28 June 1968, the petitioner began employment as a laborer with the respondent O'Malley Glass and Millwork Company. He was assigned by the manager to sweep a black-top portion of the yard with a pushbroom, a job the manager later observed him performing. He was assigned to work under Mr. Huston Sarten, forklift operator and yardman for the employer. Mr. Sarten told the petitioner to stack some short pipe on a wooden pallet. Mr. Sarten then went about his own job and when he returned petitioner was no longer there.
Meanwhile, at approximately 9:00 a.m., the petitioner appeared at the manager's office and stated that he believed he had hurt his back, nothing being said as to how such injury occurred. The manager took the petitioner to Memorial Hospital where X rays indicated no abnormality in the lumbosacral spine. The hospital report lists petitioner's subjective complaint of slight tenderness at the region of the 3rd and 4th lumbar vertebrae. The petitioner was discharged from the hospital that morning and was seen later by Dr. Carlos Greth, who treated him for a low back sprain.
At petitioner's request a hearing was held at which time the petitioner, respondent's manager, and Mr. Sarten testified.
The question before the Court is whether the award of the Industrial Commission is reasonably supported by the evidence. We have reviewed the record, and it is the opinion of the Court that the petitioner failed to sustain his burden of proving that he suffered an accident arising out of and in the course and scope of his employment.
The award is affirmed.
DONOFRIO, P.J., and STEVENS, J., concur.