On Rehearing October 24, 1949.
Cox, Lockwood & Lockwood, L. J. Cox, Jr., of Phoenix, and Ira Schneier, of Tucson, for petitioner.
H. S. McCluskey, of Phoenix, Robert E. Yount, of Phoenix, of counsel, for respondents.
William Erwin Steward (hereinafter called petitioner) sustained an injury on [69 Ariz. 162] March 16, 1945, while employed in Arizona as a truck driver by the Chambers Transfer and Storage Company. Application was duly made to the Industrial Commission of Arizona (hereinafter called the Commission) for compensation and on May 24, 1946, the commission made its findings and award which consisted among other things of a finding of the fact of injury of petitioner on March 16, 1945 arising out of and in the course of his employment and that his average monthly wage was $523.50; that he was entitled to compensation and that the evidence indicated that his physical condition was not stationary and fixed its award at a fixed amount then accrued
and providing for compensation for temporary partial disability equal to 65% of the difference between $523.50 and the wages petitioner might be able to earn after May 15, 1946 to be paid in monthly payments and for accident benefits. Another finding and award was made on September 17, 1946 not material here.
An examination of the records disclose that on Septembre 6, 1647, the commission made its finding that the petitioner had then fully recovered from his injury and that he should return to work, and made its award for the sum of $10,021.90 of which $9,273.46 had been paid, the balance of $748.44 to be payable forthwith together with accident benefits. No provisions were made for further payments. This had the effect of terminating the compensation of petitioner as of that date. On October 16, 1947, upon a rehearing the commission affirmed this award and ordered that petitioner take nothing by reason of his application for rehearing.
The commission thereafter granted another application for rehearing and conducted a further hearing on November 17, 1947, after which on January 28, 1948 it rescinded its findings and awards of September 6 and October 16, 1947, respectively, and made an award payable to the applicant for:
1. Accident benefits.
2. Sum of $9,273.46, all of which had been paid at that time, and for additional compensation for "temporary disability" from May 31, 1947 with the exception of the period of time for which petitioner was employed, said compensation to continue until further order of the commission. The commission in said order reserved the right to alter, amend or rescind said award for good cause. The award is silent as to whether the disability found was "temporary total" or "temporary partial". There is nothing in said findings or order to the effect that petitioner may require further surgery or that he should consult with any doctor relative thereto.
There does appear however in the records an inter-office communication signed by two members of the commission dated January 12, 1948 addressed to the claim's department directing it to "Rescind previous award, place the man (referring to petitioner) under the care of Dr. Greer and [69 Ariz. 163] authorize vocational rehabilitation training." Counsel for the commission seem to give it the same dignity as if it were incorporated in the findings and award of January 28, 1948.
On May 4, 1948 the commission issued an order, on its own motion, directing petitioner to appear before the commission or its referee "To show cause why a further compensation in your case should not be discontinued pending the submission by you of evidence on which the Industrial Commission may determine your loss of earning capacity between what you were able to earn prior to the injury and what you may be able to earn hereafter." The petitioner was further ordered to bring with him all records in his possession touching upon his earning capacity for the twelve months immediately prior thereto.
Pursuant to this order of the commission a hearing was conducted before the referee on May 11, 1948 but no evidence was elicited relative to a change in petitioner's physical condition subsequent to the award of January 28, 1948, nor was there any evidence adduced relative to his average monthly wages. Petitioner failed to produce at the hearing any records of his earnings during the twelve months immediately prior to his injury but did later furnish the commission with a statement from the Social Security Administration showing his earnings from January 1 to March 31, 1945.The records indicate that petitioner declined to cooperate with the commission and with the members of the medical board on many other occasions, or at least was grossly negligent in this respect.
According to the evidence at this last hearing petitioner had received two checks from the commission on February 3, 1948 for $1,143.99 and $381.41 respectively, or a total of $1,525.40 based on the award of January 28, 1948, and both the petitioner and the Chambers Transfer and Storage Company waived their right of rehearing and appeal therefrom. There is nothing in
the record that throws any light whatever on how the commission arrived at these amounts and there is no order of the commission in the records directing said amounts to be paid, nor is there anything to intimate what period they covered.
An examination of the record fails to disclose any documentary or other evidence tending to show any change in the physical condition of petitioner subsequent to the award of January 28, 1948. However on July 30, 1948, for the first time the commission made a finding to the effect that petitioner's earning capacity should have been computed at not to exceed $316 per month instead of $523.50 per month and in said findings and award found that subsequent to April 15, 1948, there was no causal connection between petitioner's alleged disability and the alleged injury of March 16, 1945 or the alleged prior injuries of December 1, 1944 and February 20, 1945, and that the award of January 28, 1948, except [69 Ariz. 164] to the extent that the same had been paid was rescinded and it was ordered that petitioner would take nothing further by reason of said alleged injuries.
An application for rehearing on said findings and award was denied by the commission and the matter comes to this court by writ of certiorari.
1. That the final award of July 30, 1948, was not supported by any evidence which had not been previously heard and determined by the commission and that petitioner was entitled under the law to have a formal hearing on the facts necessary to sustain said award.
2. That when a trier of facts has alternative methods of determining an ultimate fact the finding of fact based upon an approved legal method, the trier of fact at a later date cannot use another method in order to arrive at a different conclusion contrary to the prior determined fact, and that the finding by the commission ...