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Smith v. Aluminum Company of America

Supreme Court of Arizona

January 29, 1945

GEORGE SMITH, Petitioner,
v.
ALUMINUM COMPANY OF AMERICA, Acting for and on Behalf of DEFENSE PLANT CORPORATION, HEDRICK-BECK-BATE, CONTRACTORS, Defendant Employer, AETNA CASUALTY AND SURETY COMPANY, Defendant Insurance Carrier, THE INDUSTRIAL COMMISSION OF ARIZONA, RAY GILBERT, EARL G. ROOKS, AND FRED E. EDWARDS, Members and Commissioners of Industrial Commission of Arizona, Respondents

APPEAL by certiorari from an award of The Industrial Commission of Arizona.

Award affirmed.

Mr. Herman Lewkowitz, Mr. Raymond R. Wein, and Mr. Jacob Morgan, for Petitioner.

Mr. C. Leo Guynn, for Respondent Employer.

Mr. H. S. McCluskey and Mr. David P. Jones, for Respondent Industrial Commission.

LaPrade, J. Ross, C. J., concurs. Stanford, J. (dissenting).

OPINION

LaPrade, J.

Page 629

[62 Ariz. 161] On and previous to July 24, 1943, petitioner was employed by respondent employers as a structural iron worker in the construction of the aluminum plant west of the City of Phoenix, Arizona. On July 24th, petitioner was overcome with heat, later diagnosed by his attending physician as "heat stroke," and became temporarily unemployable. In due time, petitioner filed his claim, liability was admitted by the employer, and payments of compensation for temporary total disability were commenced, pursuant to the Commission's order dated September 3, 1943. The final report of I. L. Garrison, the doctor in attendance, gave October 1, 1943, as the date upon which petitioner was able to work.

Petitioner worked intermittently at his regular trade from August 9, 1943, until December 8, 1943, when he was referred to a board of medical consultants composed of Drs. I. L. Garrison, A. M. Tuthill, and H. J. McKeown. They recommended that certain laboratory work be done. Petitioner thereupon was admitted to the hospital, and this phase of the medical investigation was carried out by Dr. Maurice Rosenthal.

On March 14, 1944, the Commission rendered its findings and award for temporary total disability from [62 Ariz. 162] July 26, 1943, to and including October 3, 1943. Petitioner, being dissatisfied with the award, filed his petition and application for a rehearing. The basis of his complaint, as stated in his petition, was:

"That he still suffers from the injury received by him; that he is unable to carry on his employment of the type and nature held by him because of physical disability caused by accident, subject of this petition for rehearing; that medical examination at this time will show that he suffers from permanent injuries, and disabilities."

The petition for rehearing was granted and the hearings held on April 27, 1944, after which, on June 28, 1944, the Commission, in effect, affirmed its award of March 14, 1944. These findings and award on rehearing were concurred in by two commissioners only. The third commissioner refused to concur. One of its findings on the rehearing was:

"That the disability from which this applicant claims to have suffered or claims to be suffering, after October 3, 1943, is not proximately the result of any personal injury sustained by accident arising out of and in the course of his said employment by the above-named defendant employer."

Petitioner has brought this decision here for review.

Petitioner in his petition for writ of certiorari, among other things, alleges:

(1) That the said findings and award on rehearing are not supported by the evidence, and are ...


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