J. B. RHOADES, Petitioner,
LEE MOOR CONTRACTING COMPANY, Employer; EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier; THE INDUSTRIAL COMMISSION OF ARIZONA, and L. C. HOLMES, and LYNN LOCKHART, as Members of the Industrial Commission of Arizona, Respondents
APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Messrs. Cox & Cox, for Petitioner.
Mr. Rouland W. Hill, and Mr. Cavett Robert, for Respondent The Industrial Commission of Arizona.
Messrs. Jennings & Salmon and Mr. Ozell M. Trask, for Respondents Lee Moor Contracting Company and Employers' Liability Assurance Corporation.
[60 Ariz. 162] McALISTER, J.
This cause is here on a writ of certiorari issued upon the petition of J. B. Rhoades for the purpose of obtaining a review of an award by the Industrial Commission. The facts necessary to a determination of the case are not in dispute and are as follows:
The petitioner, J. B. Rhoades, was injured on July 17, 1939, in the course of his work as an employee of the Lee Moor Contracting Company whose insurance carrier was the Employers' Liability Assurance Corporation, Limited. On August 7, 1940, he was awarded compensation for temporary disability in the sum of $1,392.50, and for permanent partial disability of the left foot in the sum of $78 monthly, for four months, and following a rehearing of the application on September 20, 1940, the award was affirmed on October 18, 1940.
The condition of the petitioner did not improve, so, upon his application dated March 12, 1941, the case was reopened on April 3, 1941, another hearing had at which new evidence was taken and on July 7, 1941, an order was entered granting additional compensation for traumatic neurosis in the lump sum of $459.38. This ruling was entitled by the commission "Decision Upon [60 Ariz. 163] Rehearing," but was in fact the original and only decision upon the petition to reopen the case and to readjust compensation, and not a decision on rehearing.
Within 20 days thereafter, that is, between July 7th and 27th, petitioner orally protested the title given this decision, a "Decision Upon Rehearing," and also requested that, since this case presented a purely medical question and the evidence was conflicting, it be submitted to the Medical Advisory Board, whereupon he was advised by the claims department of the Industrial Commission that he could do nothing further before the commission, but that his only remedy was an appeal to the Supreme Court.
Neither the petitioner nor anyone for him filed an application for a rehearing within the period allowed by the rules of the Industrial Commission therefor, that is, 20 days from July 7, 1941, though his personal physician at that time, Dr. L. L. Tuveson, also protested orally within this time the calling of the decision one upon rehearing and in addition requested that the medical question in the case be submitted to the Medical Advisory Board. This request was renewed by him in a letter dated August 7, 1941.
The Industrial Commission did not act upon the oral protests or requests, nor upon the written request of Dr. Tuveson, since it was received more than 20 days after the making of the award, and some eight months later, or on March 2, 1942, petitioner filed an "Application for Decision Upon Protest to Decision" and a "Petition and Application for Readjustment of Claim." In the former he set forth the facts relative to the action of the commission on his application of March 12, 1941, to reopen the case, the oral protests of himself and Dr. Tuveson and his refusal to accept the increased compensation of $459.38. He alleged also that it is now, and has been, the practice of the commission to allow an applicant aggrieved because of its decision [60 Ariz. 164] to protest the same without the necessity of filing a formal application for rehearing and, therefore, he was entitled to a decision by the commission upon his protest of the decision of July 7, 1941, wrongfully entitled "Decision Upon Rehearing." He requested further that the commission determine that he did make application for a rehearing within the time allowed by law, that is, that his oral protest of the award should have been treated as an application for a rehearing, and that it grant him a rehearing upon his oral protests.
The commission declined to regard the oral protests, though made within 20 days, as a petition for a rehearing, and it was justified in so doing under the rules of the commission and their construction in Schultz v. Industrial Commission,44 Ariz. 357, 37 P.2d 372; Hershkowitz v. Arizona Highway Department et al.,56 Ariz. 494, 109 P.2d 46, and Wise v. Six Companies, Inc.,43 Ariz. 24, 28 P.2d 1007. If the commission, notwithstanding its rules, had been following the practice of accepting oral protests of an award as a compliance with the rule requiring the filing of an application for a rehearing, this fact should have been established by proof, but none was offered. So, if petitioner desired a rehearing of his application to reopen the case and readjust compensation, he should have disregarded the fact that the commission had entitled its award a "Decision Upon Rehearing," since it was in fact an original decision upon the application to reopen and readjust, and have filed a petition requesting a rehearing within 20 days from July 7, 1941. Just why the award was so designated does not appear, unless it be that the commission felt that the hearing on the ...