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Smith v. Industrial Commission

Supreme Court of Arizona

October 28, 1946

SMITH
v.
INDUSTRIAL COMMISSION et al

Appeal by Certiorari from an Award of the Industrial Commission.

Proceeding under the Workmen's Compensation Act by H. J. Smith, claimant, opposed by the Arizona Brewing Company, employer. To review an order of the Industrial Commission, denying claimant's application for rehearing after the commission's award of compensation for permanent partial disability, claimant brings certiorari.

Award affirmed.

Fred O. Wilson, of Phoenix, for petitioner.

John R. Franks, of Phoenix (H. S. McCluskey, of Phoenix, of counsel), for respondents.

Stanford, Chief Justice. La Prade and Morgan, JJ., concur.

OPINION

Stanford, Chief Justice.

This case comes before us on a petition for a writ of certiorari asking, among others things, that the petitioner have a rehearing on his case pending before the commission.

Petitioner was an applicant before the Industrial Commission under the provisions [65 Ariz. 44] of the Arizona Workmen's Compensation Act, and on March 24, 1945, the commission entered its amended findings and award, the award containing the following usual order at the close of the award "that any party aggrieved by this award may apply for rehearing of the same, by filing application therefor at the office of this Commission, within twenty days after the service of this award, as provided by the rules and regulations of this commission; * * *" The award was served on the applicant by mail on the day it was made, March 24, 1945. Petitioner on April 11, 1945, advised the commission as follows:

"This is to inform you that I have retained Mr. Fred O. Wilson, of Phoenix, Arizona, as my attorney to represent me and handle all matters in connection with my claim against the Arizona Brewing Company and The Industrial Commission. This claim is numbered CC 234.

"This letter will also serve as your authority to make available to Mr. Wilson for his perusal any files, records, etc. that you have in connection with my claim."

Mr Wilson, on the same date, April 11, 1945, sent the commission the following communication:

"This letter is being written on behalf of my client, Mr. H. J. Smith.

"Under date of March 24, 1945, your Commission issued 'Amended Findings and Award for Unscheduled Permanent, Partial

Page 754

Disability under Provisions of Section 56-957, sub-sections (c) and (d), Arizona Code Annotated 1939.'

"Mr. Smith wishes to apply for rehearing from the amended findings and award above referred to and this may be considered notice of such application as required by law in the rules and regulations of the Commission. Formal petition and application for rehearing will be filed within a very short time when results of medical examinations which Mr. Smith has taken are available and may be referred to in the formal application."

As to any action taken further in the way of a follow up formal application, as referred to by Mr. Wilson, none was taken, nor was anything done until September 13, 1945, at which time the commission entered its findings and order as follows:

"Findings

"1. That on March 24, 1945, this Commission made and entered its Amended Findings and Award, awarding accident benefits, temporary compensation, and ...


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