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Nevitt v. Industrial Commission

Supreme Court of Arizona

April 24, 1950

NEVITT
v.
INDUSTRIAL COMMISSION et al

Award affirmed.

Darrel G. Brown, of Tucson, John T. Kettlewell, of Tucson, for petitioner.

Robert E. Yount, Industrial Commission, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent.

De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.

OPINION

De Concini, Justice.

[70 Ariz. 173] J. H. Nevitt, the petitioner, was injured on August 6, 1943, while employed as a plumber by Anderson Plumbing who was insured with the Industrial Commission of Arizona, hereinafter referred to as the commission. Petitioner had his medical bills paid and received compensation up to January 17, 1946 by an award dated February 7, 1946.

Three years later on February 7, 1949, petitioner filed for a reopening of his case with this statement: "I wish to reopen my case as I feel that I need medical attention for a hernia which I sustained at the time of my injury on August 6, 1943." The commission denied his request on the basis of insufficient supporting evidence. Petitioner again filed for a rehearing and again it was denied by the commission. Petitioner then filed an amended petition to reopen for the reason that he had not had the opportunity to cross-examine the six doctors who examined him. The award of February 7, 1946, was predicated in part upon the report from those doctors.

A hearing was had on June 1, 1949 at which evidence was introduced; the above-mentioned doctors were either cross-examined by petitioner, or the right to cross-examine certain of them was waived. The commission affirmed its previous award de -- nying petitioner further compensation. Petitioner brings this appeal under section 56-972, A.C.A.1939.

[70 Ariz. 174] The evidence adduced at the hearing sustained the commission's findings that petitioner did not connect his hernia with his original injury. However, the evidence did tend to prove that petitioner was suffering from an anxiety neurosis at the time of his discharge on January 17, 1946 and is still suffering from the same.

The sole question here is did the petitioner lose his rights by not filing for a rehearing on the award of February 7, 1946, within twenty days as provided by the rules of the commission. The legislature authorized the commission to make its own rules of procedure; sections 56-904 to 56-911, A.C.

Page 1040

A.1939. Rule 37 of the Rules of Procedure of the Industrial Commission provides:

"Rehearings; Time of Application; Protest: -- Any party aggrieved by any award or decision of the Commission granting or denying compensation must file his application for a rehearing thereof at the office of the Commission, Arizona State Building, Phoenix, Arizona, within twenty (20) days after the service of the award or the decision complained of. Filing of application as contemplated above, means actual ...


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