Theodore G. McKesson, Thomas P. Riordan, James D. McKesson, Phoenix, for petitioner.
Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concurring.
On December 6, 1948, applicant was suffering from silico-tuberculosis indicating long exposure to silicon dioxide (Si02) dust and on that date filed a claim with the Industrial Commission of Arizona for disability benefits under the provisions of the Occupational Disease Disability Law of Arizona, Section 56-1201 et seq. On April 28, 1949, the commission entered its findings and award denying him compensation or medical benefits
Thereafter, upon petition of applicant, the commission granted a rehearing at which evidence was taken and on December 13, 1949, affirmed its previous finding and award, expressly finding that applicant had not been exposed to harmful quantities of silicon dioxide (Si02) dust for a total period of not less than twelve hundred [70 Ariz. 228] shifts in employment in the state during the ten years immediately preceding his disablement as required under section 56-1213(a), paragraph 3, of the Arizona Occupational Disease Disability Law.
The matter comes to us on certiorari.
There is no dispute in the evidence that applicant was suffering from silico-tuberculosis at the time the application was filed with the commission nor is there any question but that he has worked in various small mines in excess of twelve hundred shifts in some phase of hard rock mining in Arizona within the ten years immediately preceding his disability.
The sole question, therefore, is: Does the evidence submitted sustain the findings of the commission that applicant was not, during such time, subjected to harmful quantities of silicon dioxide (Si02) dust?
The burden was upon applicant to prove that he was exposed to harmful quantities of silicon dioxide (Si02) dust during the period involved. Let us see what the record discloses. We shall quote verbatim from all of the evidence in the transcript of record bearing upon this question. The applicant testified as follows:
"Q. Did you ever have any trouble with dust in any of these mines? A. In some of them.
"Q. What kind of dust was it? A. From the drilling, sometimes they didn't have enough water and before you knew it you had dust in your machine, that is where you get your dust.
"Q. Do you know what kind of rock you were working in? A. Yes, sir, I can tell you everything about the rock.
"Q. What kind of rock was it? A. It was quartz.
"Q. Do you know whether or not quartz contains any silica? A. Yes, sir.
"Q. Do you know whether it contains any silicon dioxide? ...