# Hopper v. Industrial Commission

> Court of Appeals of Arizona · September 7, 1976 · 27 Ariz. App. 732

URL: https://www.frixlaw.com/law-library/cases/9623003

## Case

- **Full name:** James E. HOPPER, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Schuck Components Systems, Inc., Respondent Employer, Home Insurance Company, Respondent Carrier; James E. HOPPER, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Schuck & Sons Construction Co., Respondent Employer, Mission Insurance Company, Respondent Carrier
- **Court:** Court of Appeals of Arizona
- **Decided:** September 7, 1976
- **Citations:** 27 Ariz. App. 732; 558 P.2d 927; 1976 Ariz. App. LEXIS 708
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Haire, Nelson, Eubank
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623003

## How later opinions describe it (automated extraction)

- holding that petition for judicial review was jurisdictionally sufficient despite its failure to "identify the respondent employer or respondent carrier in either the caption or the body of the petition [because] it did accurately identify the new injury claim in both the capt…
- holding although the respondent employer was not named in the title or body of the petition, the fact that the claim was identified in the title and body by reference to the industrial commissioner claims number was sufficient

## Opinion text

NELSON, Judge,
dissenting.
Because of my view that the fraud alleged in this case has not been proven by “clear and convincing evidence”, I must dissent. Since the resolution of this issue involves factual questions, additional matters in the record must be set forth. Hopper’s initial injury occurred on April 24, 1973. He was seen on the same day by T. Sie, M.D. He was referred by Dr. Sie to Howard Aidem, M.D., an orthopedic surgeon, who saw Hopper the next day, April 25, 1973. He was admitted to Good Samaritan Hospital on May 16, 1973 for surgery, a right medial menisectomy, which was performed on May 18, 1973. Hopper remained on total temporary disability compensation until August 27, 1973, when he returned to work. On October 1, 1973 he was released by Dr. Aidem with a 10% partial loss of the left leg. On October 9,1973, Home issued a notice of claim status awarding compensation based upon a 10% functional loss of use of the right leg. See: A.R.S. § 23-1044B (15) and (21).
On February 21, 1974, Hopper filed a petition to reopen, following a letter from Dr. Aidem to the Commission suggesting continuing complaints, possible new X-rays *738 and additional surgery. The petition to reopen was denied by Home because of an alleged new injury in October 1973 (Claim No. 3/C-89-44, supra). Although Dr. Ai-dem’s communications to the Industrial Commission of Arizona, as did his testimony, supra, all indicated that Hopper’s troubles related to his original injury of April 1973, and Hopper himself was reluctant to file a new claim when he did not think he had any basis for it, a new claim was filed as urged by this Court in Young v. Industrial Commission, 19 Ariz.App. 304 , 506 P.2d 1089 (1973).
Fraud is never presumed and must be proven by “clear and convincing” evidence. Gardner v. Royal Development Company, 11 Ariz.App. 447 , 465 P.2d 386 (1970). The evidence in this case is not “clear and convincing” within the standards set down for such evidence and the award should therefore be set aside.
First of all, I agree with the majority that this issue is primarily one for the trier of fact, here the hearing officer, and should not be disturbed unless we must say as a matter of law that no one could find the evidence to be clear and convincing. Murillo v. Hernandez, 79 Ariz. 1 , 281 P.2d 786 (1955). See also: Micucci v. Industrial Commission, supra; Malinski v. Industrial Commission, 103 Ariz. 213 , 439 P.2d 485 (1968); Gronowski v. Industrial Commission, 81 Ariz. 363 , 306 P.2d 285 (1957).
Before I review the evidence itself, I deem it advisable to review the Arizona decisions touching on this quantum of proof, “clear and convincing evidence”. Two early cases referred to and followed in Murillo v. Hernandez, supra, discuss the matter in the context of what it takes to achieve this burden in equity cases, specifically constructive trusts imposed by virtue of oral contracts to convey land. Costello v. Cunningham, 16 Ariz. 447 , 147 P. 701 (1915); Stewart v. Schnepf, 62 Ariz. 440 , 158 P.2d 529 (1945). While the factual and legal situations are different, the burden of proof is the same as we are here concerned with. In those two cases these words are used as descriptive of the burden of proof: “clear, explicit, satisfactory, convincing (Costello), definite, unequivocal, scrutinized with particular care, certain (Stewart).” In Murillo v. Hernandez, supra, the Arizona Supreme Court recognized that judges and text writers had “experienced difficulty in precisely defining this quantum of proof”. 79 Ariz. at 9 , 281 P.2d at 791 .
Although the comments are again made in the context of an oral trust in connection with land, the Court’s language in Murillo, supra, is instructive:
“While the courts generally agree in requiring an extraordinary degree of proof to establish a parol or implied trust, it is difficult to say in what terms the required degree of proof should be stated. ******
“The rule has been said, however, not to require mathematical certainty, nor does it require direct evidence or uncontradict-ed proof. It is sufficient, if the evidence is strong enough clearly to convince the court [trier of fact, i.e., trial court, jury, hearing officer] . . ” 79 Ariz. at 9 , 281 P.2d at 791 .
In Murillo, supra, the Court adopted the earlier procedure outlined in Costello and Stewart, supra, of setting forth extensively the evidence necessarily relied upon by the trier of fact in resolving the issue required to be proven by clear and convincing proof. When that is done in this case, it is my view that the hearing officer either did not apply the proper burden of proof to the carrier, or simply did not appreciate its magnitude as set forth above.
With the exception of one or two questions asked of Dr. Aidem, which will be referred to later, the totality of the proof that Hopper faked his injury is contained in the testimony of Michael Clark, a private investigator employed by Home Insurance Company.
His testimony, except for colloquies between counsel and the hearing officer and questioning to which objections were sustained, is set forth in its entirety:
*739 “Q. Would you state your name for the record, please?
A. Michael Clark.
Q. What is your office address?
A. 3249 East Indian School Road, Phoenix, Arizona.
Q. By whom are you employed?
A. Tatt Investigating Firm, Incorporated.
Q. When did you first become employed with Tatt?
A. Since January.
Q. Of 1974?
A. Of 1974.
Q. Have you worked for them continuously since January?
A. Yes.
Q. What has your work consisted of?
A. A two-month training program and learning the techniques of investigation and then approximately six months in the field.
Q. In six months in the field have you investigated any one particular type of case more than others?
A. Yes.
Q. What type is that?
A. Workmen’s Compensation.
Q. Has Tatt Investigating Firm been retained by Home Insurance Company to conduct an investigation into the case involving James Hopper?
A. Yes.
Q. When did you personally first perform any activity with respect to that assignment?
A. May 31st, 1974.
Q. . Who did you obtain your assignment from?
A. Mr. Ken Cole.
Q. He is employed by Tatt?
A. Yes.
Q. What were your instructions?
A. Place Mr. James Hopper under surveillance over the weekend of June 1st and June 2nd, 1974, and May 31st.
Q. When did you first observe Mr. Hopper?
A. May 31st.
Q. Incidentally, if you have made notes concerning your surveillance and you wish to refer to them, you may do so. You don’t have to, of course. On May 31st did you have any conversations with Mr. Hopper?
A. No.
Q. You just observed him?
A. Yes.
Q. For about how long a period of time?
A. I observed him from 4:00 o’clock, I followed him home, myself and another investigator, we followed him home. Later on that evening, approximately 6:20 he left his home, went to a garage, he left the garage, stayed at the garage approximately an hour or so, left the garage, went to a bar located near the corner of — Michele’s Bar located near the corner of 43rd Avenue and Van Burén, entered the bar.
I called my office, I returned, Mr. Hopper had gone. I saw him later that evening, approximately 8:00 o’clock he returned to the bar. I entered the bar, placed him under surveillance and for approximately two hours. Approximately an hour and a half.
Q. You had no conversations with him on that day?
A. No.
Q. When did you last see him on May 31st?
A. May 31st?
Q. Yes.
A. 10:00 p.m.
Q. Where was he then?
A. He was leaving Michele’s Cocktail Lounge and going home. He was going home.
Q. Did you see him then the next day, which would have been June 1st, 1974?
A. Yes, I did.
*740 Q. When did you first see him on June 1st?
A. About approximately 9:40 a.m.
Q. What did that observation consist of?
A. He simply emerged from his apartment, stood in the front yard momentarily, then returned inside.
Q. When did you see him next on June 1st?
A. About 12:45.
Q. Where were you at the time.
A. I had Mr. Hopper’s residence under surveillance.
Q. Where was he when you saw him?
A. He emerged from his residence, walked south on 39th Drive out of view.
Q. When did you next see him?
A. Well, he returned in about five minutes, I saw him again at about 1:40. Yes, it was about 1:40, 1:45 he left his house again and went to Michele’s Cocktail Lounge.
Q. Did you then follow him to Michele’s Cocktail Lounge?
A. Yes, I did.
Q. Did you go into the lounge after he did?
A. I waited about 10 minutes and then I entered the bar.
Q. When you went to the bar where was Mr. Hopper?
A. He was sitting at the bar.
Q. Where did you seat yourself?
A. To his immediate right.
Q. Right next to him at the bar?
A. Yes.
Q. Had you seen him enter the bar?
A. Yes, I did.
Q. When you got in,and sat down next to him, did he already have a drink?
A. Yes, he did.
Q. Did you order a drink?
A. Yes, I did.
Q. Did you engage in any conversation at that time with Mr. Hopper?
A. Yes, I did.
Q. Would you tell us generally to the best of your recollection what your conversation was at that time?
* * * * * *
Q. BY MR. LIEBERMAN: Would you relate to us to the best of your recollection the conversation you had with Mr. Hopper as you sat down next to him at the bar on that day?
A. Well, Mr. Hopper informed me that he had a wife and three children, he had been employed, I asked him about his employment. He said he had been unemployed approximately one year as a result of an industrial accident., Mr. Hopper stated that he was on a roof, he worked for a friend of his in the construction business.
He was on a roof teaching an apprentice how to hang trusses. The gentleman on the other end of the truss gave him too much slack and he fell to the ground and hurt his right knee. He related to me that he went hunting approximately six months prior to this report but upon returning from his hunting trip his doctor informed him not to take part in this kind of activity because the insurance company would think there was nothing wrong with him as far as his claim.
This part about him hurting his knee in the industrial accident, about what time of day did he tell you that?
This was about 2:30, approximately 2:30.
Q. Did the subject of his injury come up or his leg injury come up later again in the day?
Yes, it did.
Q' About what time did it come up again?
A. Approximately 3:15.
Q. About 45 minutes later?
A. Right.
Q. How did it come up the next time?
A. Well, we were casually talking and I told Mr. Hopper that I had injured my *741 knee while riding a motorcycle. And he told me that in fact that was how he really hurt his knee, on a motorcycle.
Q. Now this is important. First of all, when you made that statement was that statement true about your own knee?
A. Yes, it was.
Q. When you made that statement to Mr. Hopper did you have any knowledge as to whether or not he had ever had a motorcycle accident?
A. No.
Q. Why did you make that statement to him?
A. Casual conversation.
Q. You told him that you hurt your knee in a motorcycle accident?
A. Yes, I did.
Q. Did you say when?
A. I said about two years ago.
Q. Did you say where the accident happened?
A. I said I was riding a motorcycle in the desert.
Q. To the best of your recollection, what was his response?
A. He told me that in fact approximately a year prior to my report that he was riding a motorcycle and he wrecked his motorcycle in the desert and that’s how in fact he hurt his right knee.
Q. What did you say then?
A. I asked him if he had insurance, and he said no.
Q. Was there any more discussion along those lines? Just relate to us the rest of it.
A. Well, he said that he was drawing Workmen’s Compensation — or he was drawing insurance through an industrial claim as a result of the motorcycle accident, and then I asked him, I said, you mean you faked the fall off the roof?
And he said yes, I did.
Q. Was there any more discussion about that?
A. Well, he told me that he had planned on getting $50,000 as a result of the accident through the insurance company.
Q. Did you have any more conversations with him for the rest of the day concerning his injury, accident, anything of that nature?
A. No.
Q. When did you last see him on that day?
A. 7:00 o’clock.
Q. That night?
A. Yes.
Q. When you had the conversation that you just related to us about Mr. Hopper telling you about the motorcycle incident in the desert, can you estimate for us how much Mr. Hopper had had to drink by then since you joined him at 2:00?
A. Could you repeat the question?
Q. Yes. Can you give us an estimate if you are able as to how much Mr. Hopper had had to drink that day at the time that he related this story to you about him hurting his leg in the motorcycle accident in the desert?
A. In my presence, three drinks.
Q. Did he appear intoxicated?
A. No.
Q. Have you seen him since that day before today?
A. No.
MR. LIEBERMAN: I have no further questions.”
EXAMINATION
BY MR. CROSSMAN:
Q. You wrote a report. I wonder if I could see it, please?
A. Sure.
******
Q. BY MR. CROSSMAN: Let me ask you this question, if I may. Mr. Clark, when did you dictate this report?
*742 A. When did I dictate that report? Tuesday the following week.
Q. That would be two days later?
A. Yes.
Q. And you dictated from the best of your recollection, is that what it was?
A. I kept notes.
Q. You mean as you were talking to him you kept notes?
A. No.
Q. When did you keep the notes?
A. Immediately after.
Q. You mean you went right home and took notes down?
A. Yes. No, I didn’t even go home in fact. I drove down the street several miles.
Q. That’s when you wrote the note?
A. Yeah.
Q. How old are you, Mr. Clark?
A. 23.
Q. How long have you been doing this work?
A. Since January, ’74.
Q. So you had been doing this what, six months, a little less, five months at the time, is that correct?
A. Five at the time, yes-.
Q. And you started putting him under sur • veillance earlier the day of the 1st, is that correct?
A. Yes.
Q. What time?
A. 6:00 o’clock. 6:00 a.m.
Q. Where did he go at 6:00 a.m.?
A. He didn’t go anywhere at 6:00 a.m.
Q. Where is the first place he went?
A. First place he went? Could you be more specific?
Q. Yes, first leaving his home?
A. When he left his home the first place he went? Michele’s Cocktail Lounge.
Q. Do you remember the whole report by heart?
A. I reviewed it.
Q. Did you review it just recently, just before you came in?
A. Yes, as a matter of fact.
Q. He went to Michele’s Cocktail Lounge. How long did he stay there?
A. Until about 5:30.
Q. What time did he get there?
A. About 2:00. Or about 1:58 p.m.
Q. You were writing these down on pieces of paper, is that correct?
A. Yes.
Q. You knew what time it was?
A. Tell me about the story about how he was involved, the story he told you about the industrial injury. Something about he fell off a roof?
A. Yes, he stated he fell off a roof.
Q. Did he tell you where it was?
A. No, on a construction site.
Q. Did he tell you where the construction site was?
A. No.
Q. Did he tell you that was a phony falling off the roof?
A. Later in the day he did.
Q. When you say later in the day, when was this?
A. Approximately 45 minutes later.
Q. Can you tell us specifically what he told you about this falling off the roof incident? Did he tell you when it happened?
MR. LIEBERMAN: At which time, later or the first time?
Q. BY MR. CROSSMAN: Any time?
A. Any time?
Q. Yes, what did he tell you about this falling off the roof incident?
A. He said he was hanging trusses, he was teaching an apprentice how to hang trusses on a roof.
Q. Did he tell you where it happened?
A. No.
Q. Did he tell you when it happened?
A. The time of day, you mean?
*743 Q. Time of year?
A. Approximately one year prior to my report.
Q. Okay, that would have been June of 1973, right?
A. Approximately.
Q. Did he tell you who he was working for at that time?
A. He didn’t give a name.
Q. But he was doing construction work, is that correct?
A. Yes.
Q. What else did he tell you?
A. What specifics?
Q. As to the motorcycle?
A. The motorcycle?
Q. Yes.
A. Told me that he had a motorcycle wreck.
Q. Did he tell you when that was?
A. Approximately one year prior to my report.
Q. That would be the same time that the falling off the roof happened, is that correct?
A. Approximately.
******
Q. BY MR. CROSSMAN: Was it your understanding he meant June of ’73?
A. Yes.
Q. Did he tell you how this motorcycle accident happened?
A. Told me he was riding a motorcycle in the desert.
Q. Did he tell you where?
A. Buckeye.
Q. Did he tell you what happened?
A. He said he wrecked it.
Q. Did he say he went to the hospital?
A. No.
* * * * * *
Q. BY MR. CROSSMAN: When he told you about this falling off of the roof, did he tell you he went to the hospital?
A. No.
Q. Did he tell you who his doctor was?
A. No.
Q. Did he tell you that this falling off the roof was a phony accident?
A. Could you be more specific?
Q. Yes. What did he tell you, did he tell you he hurt his knee in the motorcycle accident or he hurt it falling down, what did he tell you? I want to remember your precise statements, what he said about hurting his knee.
A. The conversation started, he told me he hurt his knee when he fell off a roof.
Q. Now later in the day he told you he hurt his knee?
A. Riding a motorcycle.
Q. Did he tell you that was in addition to hurting the knee after falling off the roof?
A. No.
Q. What did he tell you about this claim being phony, can you tell me what his exact words were, if you remember?
A. He didn’t state verbatim that the claim was phony.
Q. What did he state?
A. He stated — he told me that he faked a fall off the roof.
Q. He faked a fall off the roof. You are sure he said he faked the fall off the roof?
A. I asked him.
Q. You asked him what?
A. You mean you faked the fall off the roof.
Q. What did he say?
A. Yes.
Q. What happened in the conversation after that?
A. Casual conversation.
Q. What was it about?
A. A lot of different things, girls, school.
Q. Go ahead and tell me. What school?
*744 A. What school? My school. I told him I was going to NAU.
Q. Is that part of your cover-up?
A. Can you—
Q. Was that part of your cover-up that you went to NAU?
MR. LIEBERMAN: Cover-up. I object. Undercover?
Q. BY MR. CROSSMAN: Undercover?
A. Yes.
Q. Did you investigate this falling off the roof?
A. What specifics do you want?
Q. As to when it happened, where it happened, why it happened?
MR. LIEBERMAN: Excuse me, I don’t think he understands. You mean after that date did he conduct any investigation?
Q. BY MR. CROSSMAN: That's right, after that date did you conduct an investigation to find out about this roof incident?
A. No.
Q. How do you get paid, Mr. Clark?
A. By the hour.
Q. By Tatt Investigation?
A. Yes.
Q. How do they get their cases?
A. How do they get their cases?
MR. LIEBERMAN: If you know.
A. That’s handled by Ken Cole.
Q. BY MR. CROSSMAN: Do you know whether attorneys call up and request investigations? Do you know how it’s done?
A. Usually insurance companies do.
Q. Do you know how this was initiated?
A. Not with specifics, no.
Q. Do you have any instructions, were you given any instructions by your supervisor or anybody else what to do on this job?
A. Yes.
Q. What were those instructions?
A. Place Mr. Hopper under surveillance.
Q. What was your purpose?
A. To ascertain his activities.
Q. To see what he physically could do?
A. See what he could physically do.
Q. How about to talk to him?
A. Yes.
Q. What were you to learn from talking with him?
A. His physical activities.
Q. What he is physically able to do?
MR. LIEBERMAN: I don’t think it’s fair. Are you asking him if anyone specifically instructed him this?
MR. CROSSMAN: Exactly what his instructions were.
A. Place Mr. Hopper under surveillance, ascertain his physical activities.
Q. BY MR. CROSSMAN: And when you heard him say that this was a phony claim, is that when you left?
A. No.
Q. How long after he told you this did you leave?
A. Till 5:00 — well, I was with him until 7:00, 7:00 p. m.
Q. You did not leave until 7:00?
A. Right.
Q. And you were with him since 1:48, is that right?
A. 2:01.
******
Q. BY MR. CROSSMAN: How many beers did he have to your knowledge from 2:01 to 7:00 o’clock?
A. He didn’t have one beer.
Q. Did he have any drinks?
A. Yes.
Q. How many drinks did he have?
A. Would you repeat the question?
Q. From 2:01 until 7:00 p. m. when you left him, to your knowledge how many drinks did he have?
A. From 2:01 until 7:00?
*745 Q. Are we going to play games or are you going to answer the question?
MR. LIEBERMAN: I object to Mr. Cross-man’s statement.
THE HEARING OFFICER: I think you may have confused him. Mr. Lieberman’s question was how many drinks he had from the time he went in there until the time he mentioned this fake claim. Now you want to know how many drinks he had the whole day.
MR. CROSSMAN: That’s exactly right.
THE HEARING OFFICER: If you know, give him the answer.
A. I would say 10.
Q. BY MR. CROSSMAN: How about yourself?
A. I would say I had five beers, six beers.
Q. That was until what time, until 7:00?
A. Yes.
Q. And after 7:00 you ran back to the office and you dictated your report?
A. No.
Q. What did you do after 7:00?
A. I made notes.
Q. You ran a couple of miles away and made notes, is that correct?
A. Yes.
Q. Did he ever tell you how this industrial injury occurred?
A. I’m sorry, I didn’t hear you.
Q. Did anybody besides Mr. Hopper ever tell you how this industrial injury occurred?
MR. LIEBERMAN: As of when?
Q. BY MR. CROSSMAN: As of today?
A. As of today?
Q. Yes.
A. I was furnished information from Home Insurance Company.
Q. Before June 1 or after June 1?
A. Before June 1.
Q. And did they tell you how that industrial injury happened?
A. He fell off a forklift.
Q. Didn’t you ask him anything about falling off the forklift?
A. No.
Q. You weren’t interested in falling off the forklift?
A. No.
* * * * * *
Q. BY MR. CROSSMAN: Did you talk to him about whether or not he was ever hurt while falling off a forklift?
A. No.
Q. Did he ever tell you that he had fallen off a forklift?
A. No.
MR. CROSSMAN: I have nothing further.
MR, TEILBORG: Nothing, Mr. Hearing Officer.
MR. LIEBERMAN: Just one. Does your salary in any way depend on the success or lack of success of your investigations?
A. No.
MR. LIEBERMAN: Nothing further.
MR. CROSSMAN: That opens up an area.
THE HEARING OFFICER: You’re excused. Thank you very much.
(Witness excused.)
MR. CROSSMAN: I can’t ask any more questions?
THE HEARING OFFICER: Next witness, Mr. Lieberman?
MR. LIEBERMAN: I have nothing further.
THE HEARING OFFICER: Mr. Teilborg? MR. TEILBORG: Nothing further.
MR. CROSSMAN: We have nothing further until Dr. Aidem comes.
THE HEARING OFFICER: He is due at 3:00 o’clock so we will recess.”
Neither Clark’s notes or his written report were offered into evidence by either party, and are not part of the record in this case.
The only other evidence which even by inference supports the finding of fraud, is a *746 series of questions and answers to Dr. Ai-dem:
“Q. To the extent that you relate both his original surgery and his need for surgery now to the accident of April 24th, 1973, do you do that entirely, Doctor, on the basis of the history that you received from the patient as to what happened on that date?
“A. Well, mostly. It’s based on the history, the fact that he did have some rotary instability when I first examined him the first time I ever saw him, and the fact is well-known that taking the meniscus itself may be the last stabilizer and if it’s torn and removed the instability may increase.
“Q. I am really going back in the other direction. You first examined him on April 25 of 1973 and he described an accident the previous day.
“A. Yes.
“Q. I take it you related his findings on April 25 to the history he gave you of an accident the day prior, is that correct? “A. Yes, sure.
“Q. And there is really no way you can tell from your examination, is there, that the accident occurred one day prior as opposed to a few weeks prior?
“A. Well, no, not from this exam, no, sir. We would merely trust his history as reliable.
“Q. That is what I am getting at. So to relate his condition on the 25th and all things subsequent to that to the accident on the 24th, you have to do that on the basis of the history that he gave you? “A. But his history did reveal that he had actually had a previous knee injury from which he thought he had recovered. “Q. Yes, but still to relate it to what he described on April 25th, you have to accept what he told you happened on April 24th really happened?
“A. Sure, that’s exactly right. The determination is based on his history.”
The record is devoid of any other evidence of fraud in making the initial claim for workmen’s compensation benefits. Hopper never attempted to conceal from his employer or his doctor, or anyone else that he hurt his leg approximately five weeks before the April 24, 1973 incident, in a motorcycle accident in the desert. Were this a routine preponderance of the evidence case, we could perhaps say that it was more probable that Hopper was relating the truth to Clark as opposed to them simply swapping tall tales about work, operations, girls, etc., as they gradually became drunk one summer afternoon in a bar. When the standard of proof is the higher degree of “clear and convincing”, the facts of this ease and the Arizona decisions cited above, simply do not allow the findings in this case to stand.
The hallmark of the Murillo, Stewart and Costello decisions, supra, is the requirement of setting forth extensively the myriad of facts and evidentiary support for the issue required to be proven in a “clear and convincing” way. The facts in this case are not even close.
Even in the two portions of testimony set forth above, there are more reasonable inferences of doubt and uncertainty than of clarity and certainty. The relation by Hopper to Clark of his roof top injury is obviously a fabrication. There is no evidence he even worked that kind of construction. All of the evidence is to the contrary. Had it been to their advantage to do so, the employer and carrier could have easily proven, by whatever burden of proof they chose, that that part of the story told in the bar on that warm afternoon of June 1, 1974, was pure fantasy, invented — like war stories and fish stories — to keep the conversation going while the blood alcohol level is raised to its desired height. Very little else in the conversation that afternoon is accurately related to anything that really happened, especially as to time and space, except the fact of a motorcycle accident, which was never denied.
The most glaring omission in the evidence, especially when viewed in relation to the quantum of evidence set out in the Murillo, Stewart and Costello cases, supra (see also Scott v. Wasielewski, 89 Ariz. 29 , 357 P.2d 614 (1960)), is the absolute failure, *747 in spite of opportunity and availability, to present evidence to show that the motorcycle accident in question could possibly — let alone probably or certainly — have been the cause of the conditions Dr. Aidem found on April 25, 1973. While the majority alludes to the fact that Hopper was put on notice that the Carrier intended to rely on the issue of fraud, and therefore should have put on evidence to negate it, there can be no serious contention that the burden of proof shifts because of a mere allegation of fraud, or, for that matter, ever. Murillo, supra; Wasielewski, supra. There is also no citation to any authority which would shift the burden of going forward with the evidence to Hopper under this set of facts.
In spite of all of the undisputed facts surrounding the motorcycle accident, its disabling effect, the medical treatment received, the days off work required, the full return to the job thereafter for several weeks, no hypothetical question was posed to Dr. Aidem, who had performed the surgery, as to whether it was possible or probable that the motorcycle accident, with all these other facts and time frames properly included, could have been a cause or the sole cause of Hopper’s condition, either as of the initial examination of April 25, 1973, or as of the date Dr. Aidem actually performed the surgery and observed the knee internally, or both. No effort whatsoever, insofar as the record reflects, was made to obtain the records, X-rays, if any, or testimony of the treating physician relating to Hopper’s motorcycle accident emergency room care. Similarly, neither the testimony or records surrounding Hopper’s emergency room care on April 24,1973 were of record. Obviously Dr. Aidem was not given an opportunity to compare the records, X-rays (if any), and testimony of the emergency room doctors to assist him in determining if it was clear and certain, probable, or even possible that Hopper’s condition could have been caused or contributed to by the motorcycle accident.
Since the bulk of my effort has been to show what evidence was not presented which could and should have been presented if probative of the issue sought to be proven by clear and convincing evidence, it is obvious to me that the tests set out in Murillo, Stewart, Costello and Wasielewski, supra, have not been met. The tall tales of two drinking “buddies” on a warm summer afternoon is insufficient “clear and convincing” evidence to upset a carefully arrived at decision of the Industrial Commission of Arizona, especially where the party with the burden of proving fraud either carelessly or carefully failed to produce the corroborative evidence necessary to sustain this extraordinary burden of proof.
As to Claim No. 3/3 — 45—47, the award should be set aside.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623003. Public record. Not legal advice.