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Hershkowitz v. Arizona Highway Department

Supreme Court of Arizona

February 9, 1942

HARRY HERSHKOWITZ and JESUS GALLEGO HERSHKOWITZ, Petitioners,
v.
ARIZONA HIGHWAY DEPARTMENT and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

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

Mr. Lemuel P. Mathews, for Petitioners.

Mr. Rouland W. Hill and Mr. Howard A. Twitty, for Respondents.

OPINION

Page 880

LOCKWOOD, C.J.

On May 22, 1940, Adolph Hershkowitz was killed by an accident arising out of and in the course of his employment with the Arizona [59 Ariz. 11] State Highway Department. A claim for dependents' allowance was filed by his parents, Harry Hershkowitz and Jesus Gallego Hershkowitz, petitioners, and the Industrial Commission made an award finding that the average monthly wage of Adolph at the time of his death was $50, and that petitioners were entitled to compensation as partially dependent parents. A motion for rehearing was filed more than twenty days after the award, and the commission refused to grant it on the ground that the time allowed by statute had elapsed. The case was brought before us on certiorari and we held that the commission correctly refused to grant a rehearing, but that petitioners were permitted to appeal to this court. Hershkowitz v. Arizona Highway Department, 56 Ariz. 494, 109 P.2d 46, 47, We said:

"... This, however, does not deny to petitioners their right to a writ of certiorari to review the award as made. Sec. 56-972, Arizona Code 1939. It limits them, however, to the question as to whether the record made on the original award sustains it, and does not permit them to make the objection that they were not given an opportunity to present such other and further evidence on the question as they might desire, a right which they would have had if the application for the rehearing had been timely."

On an examination of the record it appears that the award was based solely on the reports of investigators of the commission, and that petitioners had never had an opportunity to present evidence sustaining their theory of the case. It showed the following factual situation:

"... that deceased was working as a powderman at the time of the injury which resulted in his death; that the regular scheduled wages of powdermen were $8 per day; that on this particular type of job they worked six days per week, but only two [59 Ariz. 12] weeks out a month, and that deceased had been working on the particular job for only three and one-half days at the time the accident occurred.... " Hershkowitz v. Arizona Highway Department, supra, and we held that such facts showed the wages of deceased on which compensation should be based, under section 56-952, Arizona Code 1939, was $96 instead of $50 per month, and set aside the award. The commission then held hearings on May 26 and August 4, 1941, at which time petitioners were permitted to, and did, present a great deal of evidence in support of their theory of the situation. The commission then, considering both this evidence and the record on which the previous award was based, made another award finding that the wages on which the award was based were $96 per month, and that petitioners were partially dependent parents. Petitioners still objected and asked for a rehearing, which was denied, and the matter is again before us for determination.

There are but two questions of fact involved, (a) what was the basic wage of deceased upon which the award should have been computed, and (b) were petitioners totally or only partially dependent upon him for support at the time of his death. In so determining, we must take into consideration not merely the original record but the evidence presented to the commission at the hearings after the first award was set aside. This evidence shows conclusively that deceased was employed as a powderman at the time of his death, and that the statutory wage of a powderman was $1 per hour or $8 per day of eight hours. The only question is the number of hours per month upon which the monthly wage should have been computed under section 56-952, supra.

[59 Ariz. 13] It is the contention of the commission that the record shows the regular employment of powdermen in the class of work in which deceased was engaged at the time of his death was only two weeks out of a month, and that under the rule laid down in Brisendine v. Skousen Brothers, 48 Ariz. 416, 62 P.2d 326, the average monthly wage on which the award was to be based was $96.

It was urged by petitioners, on the contrary, that powdermen, being skilled workmen, were regularly employed on a full monthly basis, instead of only two weeks out of a month, and that the average monthly compensation was $208.

Page 881

We have examined the evidence and we think the testimony of J. A. Quigley, who was the resident engineer in charge of the work when deceased was killed and who did not testify on this point when the previous award was made, is conclusive to the effect that men classified as skilled laborers in work of that class were not, as a rule, worked on the two weeks out of a month basis, but on a full time basis, and that powdermen were considered to be skilled laborers who were kept on the work steadily as long as it lasted. Under those circumstances we think, under the ...


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