Phoenix Indemnity Co. v. Industrial Accident Commission

PULLEN, P. J. Petitioner, an insurance carrier, seeks to review a decision on rehearing of the Industrial Accident Commission, wherein it was found that Louis Fontana had sustained an industrial injury which had resulted in a permanent disability amounting to 44% per cent, entitling the employee to $14.82 a week for 178 weeks.

Petitioner contends the evidence is insufficient to support the finding of permanency of injury; that the percentage of injury did not amount to 44% per cent, and that the liability for such permanent disability, if any, should have been apportioned between the injury and pre-existing arthritis.

The facts briefly are that Fontana filed an application for adjustment of claim with the Industrial Accident Commission in July, 1939. At the hearing in August, 1939, it appeared that Fontana was 56 years of age, and had worked for his immediate employer for twenty years as a laborer, doing general work.

On December 24, 1937, he, with three other men were loading prunes from a platform into a freight ear. This they did by moving the prunes on a four-wheel truck, which when [860]loaded, weighed about 1400 pounds, across an iron plate which bridged the space between the platform and the car. The accident was caused by the iron plate slipping and falling between the platform and the car, and the tipping truck caught the injured man’s foot between the truck and the side of the car. He was taken to a hospital, and the lower leg was placed in a cast. That night his ankle became swollen and the cast was removed, and then for about twenty days his leg was elevated and heat applied, when a cast was again applied. He wore this cast for about six weeks, and it was then removed and soft bandages applied until June, 1939. During this period he did no work, suffered pain in the foot, and was compelled to use a cane.

Several physicians and surgeons have testified before the Commission. Dr. Heggler testified that Fontana called upon' him on August 16, 1939, which was over a year and one-half after the injury. He found from his examination and a history of the patient, that about thirty years prior to that time he had suffered an injury to the left knee. The injury for which the patient came for an examination was the injury to the right foot and ankle hereinbefore described. The examining doctor found some atrophy in the right leg and a swelling in the right ankle, with pain and tenderness, and also described in degrees the limitation of motion of the right foot. He also testified as his opinion, that Fontana was then unable to pursue his usual employment, and was totally disabled. He also stated the present injury had aggravated the arthritic condition of the earlier injury to the left knee, and to some extent such pre-existing arteriosclerosis aggravated or prolonged his recovery to a moderate degree. It was the recommendation of Dr. Heggler that the applicant receive a four week’s course of treatment of physiotherapy, and if no improvement be had, that a permanent rating be fixed.