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Phelps Dodge Corporation v. ford

Supreme Court of Arizona

March 7, 1949

PHELPS DODGE CORPORATION
v.
FORD et al

Page 634

Appeal from Award of Industrial Commission.

Proceeding under the Occupational Disease Disability Law, by Thomas Ford, claimant, opposed by the Phelps Dodge Corporation, employer. To review an award of the Industrial Commission in favor of the claimant, the employer brings certiorari.

Reversed.

Evans, Hull, Kitchel & Jenckes and Denison Kitchel, all of Phoenix, for petitioner.

H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix, of counsel), for respondents.

Stanford, Justice. LaPrade, C. J., and Udall, Phelps, and DeConcini, JJ., concur.

OPINION

Stanford, Justice.

Page 635

[68 Ariz. 191] Respondent Thomas Ford filed claim on November 18, 1947, for compensation under the Arizona Occupational Disease Disability Law, and the latter part of that year the Industrial Commission issued its findings [68 Ariz. 192] and award granting to Ford compensation for total disability due to silicosis. On January 15, 1948, the employer, Phelps Dodge Corporation, hereinafter termed the petitioner, filed its application for rehearing protesting such findings and award. It was stipulated that the following agreed statement of facts was in effect a rehearing, and that the Industrial Commission should accept the statements as evidence in the case.

"Agreed Statement of Facts.

"1. Applicant was employed by defendant employer or its predecessors for a period of approximately 40 years, commencing in August, 1907, and ending in June, 1947. For the first 12 years of that period applicant was employed by defendant employer and its predecessors in general mining work underground.

"2. In April, 1919, applicant was told by a member of the medical staff of defendant employer to take a job on the surface because of having silicosis. From April, 1919, until June 15, 1947, applicant was employed by defendant employer as a watchman on the surface of defendant employer's mining properties in and around Bisbee, Arizona. During said period of approximately 28 years applicant's duties as a surface watchman consisted of the following:

"(a) Acting as a watchman at the surface yard gates of the Junction, Campbell, Cole, and Sacramento shafts.

"(b) Acting as attendant in the changerooms located in the surface yards of the Junction, Campbell, Cole, and Sacramento shafts.

"(c) Acting as fireman at defendant employer's heating plant located in the Phelps Dodge Mercantile Company store on the surface in Bisbee, Arizona.

"3. At no time during the period, April 1919 to June 15, 1947, was applicant employed underground."

On March 30, 1948, the Industrial Commission issued a supplemental award and an order affirming previous findings and award. Thereafter petitioner obtained from this court a writ ...


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