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Radaca v. United States Smelting, Refining And Mining Co.

Supreme Court of Arizona

April 30, 1945

ELY RADACA, Petitioner,
v.
UNITED STATES SMELTING, REFINING AND MINING CO., and THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents

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

Award affirmed.

Mr. W. H. Chester and Mr. Z. Simpson Cox, for Petitioner.

Mr. C. Leo Guynn, for Respondent Employer.

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

Morgan, J. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan, J.

[62 Ariz. 465] On November 5, 1942, petitioner, while in the employ of United States Smelting, Refining and Mining Company, sustained injuries by being thrown from a truck onto the highway. The injuries [62 Ariz. 466] consisted of severe bruises and several broken ribs. He was at the time aged 52 years and had worked for a considerable period as a miner, mostly at mucking. He was hospitalized for sixty-four days at Kingman. The employer was engaged in the mining business and had fully complied with the terms and provisions of the workmen's compensation law and was insured against liability under such law by the Industrial Commission of Arizona.

Page 541

Early in January, 1943, petitioner came to Phoenix and was treated and examined by several doctors; x-rays were also taken. The evidence disclosed that in mid-January his left chest, back and left side were sore, he spit up a little blood, was weak and had pain in the left chest. He was suffering from an advanced stage of osteo-arthritis of the lower dorsal region of the spine; also from silicosis moderately advanced. The films showed the broken ribs to be in good condition. Some of these ribs were fractured near their attachment to the spine but had united in proper alignment. The medical evidence disclosed that petitioner was suffering from spondylitis deformans or hypertrophic spondylitis of long standing and progressive character, which was aggravated by the injury.

A medical report of four physicians, filed with the commission in May, disclosed petitioner's mental status to be depressed and antagonistic; that he could do light work, and that no benefit could be obtained from prolonging treatment which had theretofore been given him. Three of the doctors reported his condition had reached a stage of permanency, and that he had partial general permanent disability attributable to the accident involved amounting to 10%. The fourth joined in this report but fixed the disability at 25%. On May 20th the commission entered its findings and award for temporary disability awarding petitioner $ 881.72, together with the additional sum of $ 11.89 monthly during his life. Following this, petitioner requested [62 Ariz. 467] commutation of this award to its fair present value and payment in a lump sum. In compliance with this request, the commission entered its award commuting the compensation to its present value, in the sum of $ 1894.29, which was forthwith paid. Applicant signed a waiver of right to apply for rehearing or to an appeal. On September 22nd petition and application for readjustment of the applicant's claim, on the ground that his disability resulting from the injury had increased 15%, and that he was entirely prevented from working at any gainful employment, supported by a medical report disclosing that he had at least a 25% disability at that time, was filed. Rehearing was allowed and testimony adduced on the part of the applicant on January 12, 1944. Hearing was continued. The respondent commission caused further medical examinations to be made of the applicant, including x-ray films. On March 20, 1944, the medical advisory board of the commission filed a comprehensive report reviewing the case and, based upon that report, finding there was no new and additional disability attributable to the accident since the May 20, 1943 award. On July 10th the respondent commission made findings to the effect that the applicant was not suffering from any new and additional or previously undiscovered disability resulting from or caused by the accident other than as shown in its findings and award of May, 1943. It further found that the disability had become stationary, permanent and fixed prior to May 20, 1943, and that applicant's disability resulting from the accidental injury was not in excess of 10%. The case comes before us on certiorari from this award.

No satisfactory statement of facts appears in petitioner's brief, nor in the briefs filed by the respondent commission and respondent employer. We have, therefore, been compelled to review the entire record consisting of 193 documents, many of which have no bearing on the issues presented, and 344 pages of testimony, [62 Ariz. 468] in addition to the three briefs of the interested parties.

The petitioner has raised a number of procedural questions which we think should be disposed of first. These, briefly, are: (1) Hearings should be held directly before the commission or some of its members. (2) Where hearings are had before a referee, written findings or reports by the referee should be filed and made a part of the record. (3) Investigations and reports following the hearing on January 12th were without any written order of the commission, and the commission erred in considering evidence so procured.

Petitioner's first contention may be disposed of quickly by reference to two decisions of this court. In Johnson v. T. B. Stewart Const. Co., 37 Ariz. 250, 293 P. 20, and in the late case of Aluminum Co. of America v. Industrial Comm., 61 Ariz. 520, 152 P.2d 297, similar ...


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