APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside and vacated.
Messrs Thelin & Marrin, Messrs. Moore & Shimmel and Mr. A. R. Lynch, for Petitioner.
Mr. Burt H. Clingan (Mr. Emil Wachtel of Counsel), for Respondent Commission.
[41 Ariz. 367] ROSS, C. J.
This case arises under the Workmen's Compensation Law (Chap. 24, art. 5, §§ 1391-1457, Revised Code of 1928), and the question presented and argued is whether the Industrial Commission erred in awarding compensation to the petitioner's employee, Gilbert Dekker, for permanent partial disability.
The employee was injured on November 13, 1931, by a fall or slide of rock in one of the large tunnels being constructed by petitioner in connection with Hoover Dam on the Colorado River, said fall or slide of rock occurring on the Arizona side. The employee sustained a fracture of the tibia and fibula of the right leg and as a result thereof received hospital treatment until March 18, 1932. He returned to his work on April 1, 1932, and has been ever since employed at his usual work by the petitioner.
On his application to the Industrial Commission he was, on March 25, 1932, awarded temporary disability compensation, calculated on his average monthly wage of $168, in the sum of $441.04, and permanent partial disability compensation of $84 [41 Ariz. 368] per month for
five months, beginning April 3, 1932. This award was made on the unverified reports of the physicians who attended Dekker from November 13, 1931, to March 18, 1932, and without any formal hearing. When the petitioner learned that the award included compensation for permanent partial disability, it filed a motion for a rehearing, which was granted. At the rehearing, which was held at the office of the commission on May 17th, two local physicians, Drs. A. M. Tuthill and A. C. Kingsley, testified as to Dekker's physical condition. Upon this testimony and the unverified reports of Drs. R. D. Balcom, of Las Vegas, Nevada, and Wales A. Haas, chief surgeon for petitioner, the above award was confirmed by the commission. Dekker was present at the rehearing but was not called as a witness by either side and did not himself request to be allowed to testify.
It is the contention of the petitioner that the evidence does not support the award for compensation for permanent partial disability. The evidence bearing upon the injury, its character, durability and effect upon the capacity of Dekker to perform labor in the future, as gathered from the testimony and statements of the doctors, is as follows:
November 19, 1931, Dr. Balcom, who administered first aid, reported the injury as "fracture of the left tibia and fibula at the junction of the middle and lower thirds. . . ."
February 22, 1932, Dr. Haas reported:
". . . At present time patient has trouble in walking and is required to use a crutch.
"X-rays taken today (February 22nd) show very poor anatomical approximation of the tibia and fibula. ...