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Micheletti v. Industrial Commission of Arizona

Supreme Court of Arizona

May 7, 1945

TIBURZIO MICHELETTI, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA; RAY GILBERT, EARL ROOKS and FRED E. EDWARDS, as Members of and Constituting the Industrial Commission of Arizona, and SAFEWAY STORES, INC., and HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondents

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

Award set aside.

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

Mr. H. S. McCluskey and Mr. David P. Jones, for Respondent The Industrial Commission of Arizona; Mr. Theodore G. McKesson and Mr. Thomas P. Riordan, for Respondents Safeway Stores, Inc., and Hartford Accident & Indemnity Company.

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

OPINION

Stanford, C. J.

Page 673

[62 Ariz. 491] This proceeding comes to us on petition for writ of certiorari to have this court set aside an award of the Industrial Commission of Arizona refusing to assume jurisdiction of an amended application for rehearing of an award denying compensation to petitioner under our Workman's Compensation Law.

It is petitioner's claim that on or about August 15, 1943, while working for Safeway Stores, Inc., "loading meat something snapped in back, as meat was heavy, about 300 lbs." He continued to work for respondent employer for about three months, or from August 15, 1943 to November 23, 1943, and then changed positions and went to work for the Alabam Freight Lines for a short time as watchman. He later returned to the Safeway Stores, Inc., taking a lighter job of sorting eggs.

Dr. Robert S. Flinn, to whom the petitioner first went about his injury, submitted to the Industrial Commission his initial report of attending physician November 26, 1943, in which he stated patient told him:

[62 Ariz. 492] "I was lifting a 300 lb. beef with another man; he hurt himself and let all the weight come to me and I felt severe pains in my back and sides. The pains got worse and I now have pains in my legs and also very frequent urination."

Dr. Flinn also stated that the date of his first treatment of petitioner was September 14, 1943.

Petitioner filed his claim with the Industrial Commission on December 14, 1943. The Industrial Commission on January 4, 1944, issued its notice of injury. On January 14, 1944, respondent employer and insurance carrier filed a denial of liability. Thereafter petitioner, or claimant, visited the office of the Industrial Commission and asked the commission if he should not have a lawyer. He was advised that he should not employ a lawyer, that the commission would protect his interest. The petition for formal hearing was filed January 20, 1944 and set down for February 24, 1944. On March 11, 1944, the commission entered its award denying compensation. On March 23, 1944, petitioner asked for a rehearing on the grounds, among other things, that he was unable to understand the proceedings of February 24, 1944. On March 28, 1944, the commission entered its order denying a rehearing. Thereafter petitioner was informed that if he could secure medical evidence of his injury by accident the commission would grant a rehearing. Dr. Charles N. Ploussard filed his report with the commission April 4, 1944. Amended petition and application for rehearing was filed April 10, 1944. The commission caused notice of hearing to be given on May 26, 1944, and said hearing was set for June 14, 1944. At the time of hearing objections to jurisdiction and rights of commission to hear amended petition for rehearing were filed by respondents employer and insurance carrier. Reply to respondents' objection to jurisdiction was filed June 29, 1944. On July 5, 1944, the commission entered its order as follows:

[62 Ariz. 493] "It is Ordered that all acts of this Commission done after the expiration of twenty days from the Order Denying Rehearing made and entered by this Commission on March 28, 1944, are null, void and ...


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