APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Mr. Edward W. Rice, for Petitioner.
Messrs. Cox & Cox, and Mr. Lloyd E. Canfil, for Respondents.
[60 Ariz. 45] LOCKWOOD, C.J.
Magma Copper Company, called the company, filed its petition in certiorari to review an award of the Industrial Commission of Arizona, called the commission, in favor of Dorothy L. Naglich and Norma Ree Ione Naglich.
The facts on which the petition was based may be stated as follows: On February 12, 1940, Joe Naglich, called the deceased, was employed as an air drill operator in the company's mine. While he was operating the drilling machine the drill steel broke, causing the machine to strike him and knock him against the wall of the mine, and then to the floor. He was examined by the chief surgeon of the company, and later by several other physicians, who found that he had been bruised somewhat by the fall and also had a tubercular condition of the spine antedating the injury, and was advised that he would not be able to resume work in the mine on account of the latter. On March 2 he filed his application with the commission for compensation for his injuries. On March 30 it found that he suffered an injury from the accident above described, causing temporary disability from February 13 to 29, 1940, entitling him to compensation of $59.22, and further that he was suffering from tuberculosis of the spine which was not caused nor aggravated by the aforesaid accident, and made the following award:
"Award is hereby made payable to the said applicant by the above named defendant insurance carrier as follows:
"1. The sum of $59.22 payable forthwith.
"IT IS ORDERED that the applicant take nothing further from the defendants or either of them by reason of said claim."
Deceased was not satisfied with this award and asked for a rehearing, claiming that his spinal condition was aggravated by the injury above referred to, and [60 Ariz. 46] on July 23, the rehearing having been granted, the following decision was rendered:
"Findings and award in the above proceeding having been rendered heretofore, to-wit, on the 30th day of March, 1940, and rehearing of the same having been requested, granted and held, and the matter having been duly submitted for decision upon rehearing:
"NOW, THEREFORE, this Commission, as its Decision upon Rehearing, orders that said Findings and Award be, and the same is hereby, rescinded."
The record does not show any other formal findings and award were made on deceased's petition for compensation, but there are numerous letters in regard to the matter. The first, dated August 26, 1940, is from the claims manager of the commission to the deceased, and reads as follows:
"Thirty days having expired since the issuance of our decision upon rehearing July 23, 1940, and no protest having been filed by any of the parties concerned, this Commission is now ready to resume the payment of compensation for temporary total disability.
"Having ruled that your present disability is the result of injury and having reinstated you on compensation it is our desire that you report immediately to Doctor Swackhamer, placing yourself completely under his care for any treatment which he may deem necessary. We cannot impress upon you too strongly the necessity of cooperating fully with your attending physician and you are advised that any failure to co-operate on your part may be considered as sufficient cause for suspending payment of compensation."
A copy of this letter was sent to the company and payments for temporary total disability were made without objection by the company until October 15, 1941, when the record shows the commission sent the following letter to it:
"After a careful consideration of all of the evidence in the case of Joe Naglich, the members of the Commission [60 Ariz. 47] are of theopinion that this man sustained an injury by accident arising out of and in the course of his employment on February 12, 1940, while in the employ of the Magma Copper Company.
$@"$!Since the date of injury and at the present time Mr. Naglich is totally disabled and in the opinion of the Commission his condition is not stationary at this time.
"The Commissioners have instructed me to advise you that their decision is to the effect that this claimant is entitled to additional compensation for temporary total disability and that he should be referred to a bone specialist for surgical fusion of the spine."
A conference was held between a representative of the company and the commission, and the latter then informed the company, under date November 7, 1941, as follows:
"As stated in our previous letter the Commission has found that Mr. Naglich is at this time totally disabled and that his condition is not stationary. On the basis of these findings the Commission has decided that Mr. Naglich shall be referred to an orthopedic surgeon for surgical fusion of the spine. You are hereby directed to refer Mr. Naglich to a competent bone specialist for examination and surgery at an early date. Until this man's condition becomes stationary he shall be paid compensation for temporary total disability, ...