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Kilpatrick v. Hotel Adams Company

Supreme Court of Arizona

June 13, 1933

JAMES KILPATRICK, Petitioner,
v.
HOTEL ADAMS COMPANY, Defendant Employer, OCEAN ACCIDENT & GUARANTEE CORPORATION, LTD., Defendant Insurance Carrier, THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award vacated and set aside and cause remanded, with directions.

Mr. H. S. McCluskey, for Petitioner.

Messrs. Young & McKinney, for Respondent Insurance Carrier.

OPINION

[42 Ariz. 129] ROSS, C. J.

The petitioner, James Kilpatrick, on November 28, 1928, while working for Hotel Adams Company in its hotel in Phoenix, Arizona, was injured in an accident compensable under the Workmen's Compensation Law (sections 1391-1457, Revised Code of 1928). Thereafter he filed with the Industrial Commission a claim for compensation, making parties thereto the employer and the insurance carrier, Ocean Accident & Guarantee Corporation, Ltd. After investigating the claim, on October 9, 1929, the commission made findings sustaining the petitioner's claim for compensation, and awarded him for temporary disability the sum of $1,125.17 and for permanent partial disability $75 per month for eight months. The petitioner, on the grounds that the compensation awarded him was, under the evidence, inadequate, made a motion for a rehearing, and upon such rehearing the findings and award of October 9th were affirmed. June 3, 1930, petitioner made application to the commission to reopen the case, which was done, and after a hearing on October 17, 1931, his compensation was restored or continued pending further investigation into his condition. On November 2, 1931, the commission sent him to the Santa Fe Hospital in Los Angeles for treatment, where he remained until December 3, 1931. December 12, 1931, and again

Page 837

February 25, 1932, the commission held hearings on his petition to reopen, and thereafter, on July 22, 1932, amended its findings and award of October 9, 1929, in two respects: It awarded him for medical care and hospital attendance $978.34, and made the [42 Ariz. 130] allowance for permanent partial disability $75 per month for a period of thirty months, instead of eight months, from November 9, 1929.

Thereafter, on the twenty-sixth day of July, 1932, the petitioner filed his motion for rehearing, and as grounds therefor alleged, in substance: That he had not been able to do any manual labor since his injury; that he had ever since suffered, and was then suffering, intense pain as the result of the injury to his back; that he is highly nervous and unfitted to follow his employment; that the award has only partially compensated him for past disablity, and does not take into consideration his continuing disability; and that it is wholly inadequate. This application was denied August 26, 1932, and the petitioner brought the case here for review. The commission, in response to the writ of certiorari directed to issue, has certified the record and proceedings to us.

One of petitioner's complaints is of the original findings and award. These were made October 9, 1929, and, although an application for a rehearing was made and denied, no appeal was taken therefrom within thirty days, or at all, as provided in section 1452, Revised Code of 1928. For the failure to appeal from such findings and award they became final. Not only this, but it appears that the petitioner has accepted the award allowed him for temporary disability and also the monthly allowance for permanent partial disability and thereby acquiesced in the award. For these reasons we may not inquire into the lawfulness of the original award.

The appeal from the findings and award of July 22, 1932, amending the original award and findings, was, however, taken within the time fixed by section 1452, supra, and such findings and award are properly before us for consideration and review. The findings and award for permanent partial disability, made [42 Ariz. 131] July 22, 1932, over four years from the time petitioner was injured, are as follows:

"3. Said injury caused also a permanent partial disability entitling said applicant to compensation therefor in the sum of $75.00 monthly for a period of thirty months.

"Award.

"Award is hereby made payable to said applicant by the above-named defendant insurance carrier as follows:

"1. The sum of $75.00 monthly, for a period of thirty months, the first payment to be made ...


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