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Cole v. Town of Miami

Supreme Court of Arizona

November 7, 1938

NORMAN COLE, Petitioner,
v.
TOWN OF MIAMI, Defendant-Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, L. C. HOLMES and SAM PROCTOR, Members of said Industrial Commission of Arizona, Respondents

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.

Mr. H. S. McCluskey, for Petitioner.

Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Respondents.

OPINION

Page 998

[52 Ariz. 490] LOCKWOOD, J.

Norman Cole, hereinafter called petitioner, has brought before us for review an award of the Industrial Commission, hereinafter called the commission, made on April 25, 1938, the material part of which reads as follows:

Page 999

"6. That the evidence is insufficient to establish that there is at this time any increase in the disabilities found by this Commission in its findings and award dated the 28th day of October, 1935, or that the alleged [52 Ariz. 491] new and heretofore unknown disabilities now by this applicant complained of are proximately the result of the injury by him sustained on the 16th day of January, 1934.

"Award.

"Now therefore, it is ordered that the applicant take nothing further from the defendants, or either of them, by reason of said claim."

Petitioner assigns two grounds why we should reverse the award: (a) That the commission was guilty of at least constructive fraud in a previous award made October 28, 1935, in that it failed to notify him at that time as to his true condition and its prognosis, and (b) that the evidence does not sustain the award. The situation out of which the appeal arose is not in dispute, and may be stated as follows:

Petitioner for a period of some fifteen years prior to January 16, 1934, had been employed as a motorcycle police officer by the town of Miami. On or about that date he sustained an injury arising out of and in the course of his employment, when the motorcycle he was riding skidded, throwing him over the handle bars onto some rocks. His attending physician discharged him for work on February 14, 1934. After resuming his employment he had another compensable injury on March 18, 1934, when he was hit by an automobile and thrown in the air, striking his head behind the right ear when he fell. He received certain medical treatment and the commission gave him a total temporary disability rating from March 18, 1934, up to October 28, 1935, a period of over a year and a half. On the date last mentioned the commission made a finding and award which, so far as material, reads as follows:

"2. Said injury caused also permanent partial disability equal to 25% of a total general permanent disability entitling said applicant to compensation therefor in the sum of $22.00 ...


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