Appeal by Certiorari from an Award of The Industrial Commission of Arizona.
Proceeding under the Workmen's Compensation by W. B. Ulmer, claimant, opposed by the Phelps Dodge Corporation, employer. To review an award of additional compensation by the Industrial Commission of Arizona, the employer brings certiorari.
Award set aside.
Evans, Hull, Kitchel, Ryley & Jenckes, Denison Kitchel, Guynn & Twitty and C. Leo Guynn, all of Phoenix, for petitioner.
John R. Franks and H. S. McCluskey, both of Phoenix, for respondents.
Stanford, Chief Justice. LaPrade and Udall, JJ., concurring.
Stanford, Chief Justice.
[65 Ariz. 181] This case comes before us on a writ of certiorari, petitioner claiming the action of the respondent the Industrial Commission of Arizona, was unlawful in entering a certain award to respondent W. B. Ulmer on May 3, 1946.
On November 15, 1941, Ulmer, while employed by petitioner, sustained a personal injury arising out of and in the course of his employment. On April 26, 1943, he filed his first claim for compensation with the Industrial Commission of Arizona. Thereafter until November 2, 1945, Ulmer was treated for injuries to his back; received many examinations by physicians; was paid accident benefits and compensation for total temporary disability, and on the last date mentioned, the Commission entered its "Decision upon Rehearing and Fifth Amended Findings and Award". Among the findings are:
"That the medical evidence reflects that said applicant is physically competent and capable of resuming his usual work; that work is available and has been offered to said applicant by the defendant employer, at a wage in excess of that for which he was employed at the time of said injury.
"That said applicant has suffered no loss of earning power as the result of said personal injury."
The following clause also appears at the close of the findings and 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; and that jurisdiction be, and it is hereby reserved to alter, amend or rescind this award upon good cause."
The medical board composed of six physicians, stated in its report: "Conclusion. As a result of our examination we are of the opinion that no further treatments or examination are necessary and that there is no new and additional disability over and above the estimate made on August 6, 1945."
On December 12, 1945, Ulmer filed a Petition and Application for Rehearing, which was denied by the Commission on [65 Ariz. 182] December 19, 1945. From that action no appeal was taken to this court. On January 30, 1946, Ulmer filed with the Commission his petition to reopen the case on the ground that he had suffered new and additional disability and in April, 1946, the Commission granted an examination by its medical board and the conclusion of that examination is as follows: "As a result of our examination, we are of the opinion that no further treatments ...