Appeal from Industrial Commission.
Proceeding under the Workmen's Compensation Law by J. A. Williams, claimant, to recover compensation for alleged permanent partial disability resulting from inguinal hernias. To review an order of the Industrial Commission of Arizona making an award to claimant for only total temporary disability, and from order affirming such award and denying a rehearing, the claimant brings certiorari.
Award set aside.
J. A. Williams, in pro. per.
H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix, of counsel), for respondents.
Udall, Justice. LaPrade, C. J., and Stanford, Phelps, and De Concini, JJ., concurring.
[68 Ariz. 148] Certiorari to review an order of the Industrial Commission of Arizona dated October 31, 1947, making an award to petitioner J. A. Williams for accident benefits and additional benefits for total temporary disability not to exceed sixty days due to a claimed recurrence of non-traumatic bilateral hernia.
From the record we glean the following facts relative to this unique case. On November 3, 1928, petitioner sustained an injury by accident, arising out of and in the course of his employment with the Calumet and Arizona Mining Company at Bisbee. As he was turning a car loaded with about four tons of steel around, he suffered a strain causing an inguinal hernia in the right groin. He received radical operative procedure and an award of 42 days' compensation from the commission. In January of 1938 the petitioner, who was then in the employ of the Phelps Dodge Corporation (this company having acquired the properties formerly belonging to the Calumet and Arizona Mining Company), made claim for additional disability, alleging recurrence of the hernia at the site of the original rupture. The commission accepted the liability and made a second award for accident benefits and compensation not to exceed 60 days. The operation was performed on January 23, 1938. Subsequently, during the month of August, 1938, the petitioner
made another application for compensation alleging another recurrence of the hernia. The commission was doubtful of its authority to make further compensation payment, but under the urging of the employer (the company being a self-rater) the commission made its third award (dated October 25, 1938) granting the petitioner accident benefits and additional compensation not exceeding 60 days. This operation, as were the preceding two, was performed in the company hospital by its skilled medical staff, and the compensation costs were billed direct to the employer. In the year 1945 the petitioner underwent an operation under the hands of Dr. Alessi of the Phelps Dodge Medical Staff, for an inguinal hernia on the left side, this being the first difficulty there. No claim for compensation or accident benefits was made to the commission by petitioner for this; in fact the commission did not learn of the matter until about two years later. It is not claimed that this hernia on the left side was caused by petitioner's sustaining another injury by accident arising out of and in the course of his employment. Nothing further occurred until August 21, 1947, when Dr. Duncan by letter advised the commission that the petitioner was "* * * found to have a recurrence of an inguinal hernia on both sides * * *." This was confirmed by a communication from Dr. Alessi. By direction of the commission the applicant was examined by Dr. James R. Moore who reported that "There is some weakness of the tissues forming the inguinal canal but no actual hernia can be demonstrated." [68 Ariz. 149] Basing its action upon Dr. Moore's report the commission denied petitioner any further relief by reason of his alleged impairment. However, as another and later examination by Dr. Alessi showed, according to his report, a recurrence of the hernia on both sides, the commission vacated its order denying compensation and made for the fourth time an award in favor of the petitioner for the usual accident benefits and total temporary disability for not to exceed 60 days. Thereafter, acting under the advice of his physicians, the petitioner wrote the commission that he had decided not to accept the proffered operation, and that he was appealing from the award, contending that as he was unable to work by reason of his condition he was entitled to an award for permanent partial disability. Williams' letter of November 19, 1947, rejecting the proffered operation was treated as a motion for rehearing and, while no further evidence was submitted, the commission re-examined the complete record and on January 19, 1948, entered its order affirming the award of October 31, 1947, and denying a rehearing. It is the validity of these last two orders that we are asked to review
We are at a loss to understand how the commission permitted reference to the left inguinal hernia to creep into their fourth award, which is here under review. There is not a scintilla of evidence, medical or otherwise, in the record as to what caused the left hernia, or whether there was or could be any relation as to cause and effect between the development of the inguinal hernia on the left side and the operative procedure on the right. The medical testimony set forth in the case of Lewis v. Southern Advance Bag & Paper Co., La.App., 28 So.2d 68, would indicate that there is only a slight conflict in medical opinion as to whether there is even an inter-relationship between the two regions.
Clearly there is no merit to petitioner's assignment of error that he was not granted a formal rehearing. There is no showing that he desired a hearing provided for under the rules of the Industrial Commission "* * * at which he shall be afforded an opportunity to present further material evidence and cross-examine any person who has given any evidence in the matter." (Rule 30.) No detailed application for formal rehearing was filed by petitioner as is required under the provisions of Rules 37 and 38, and a failure to comply therewith constitutes a waiver of the right to a formal rehearing. The most that can be said is that petitioner filed a written notice of protest. The facts here are not in ...