Award set aside.
Richard Fennemore, Phoenix, for petitioner.
H. S. McCluskey, Phoenix, Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondent, Industrial Commission.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concino, JJ., concurring.
This is a proceeding by certiorari to review the action of the respondent Industrial Commission of Arizona in denying compensation and accident benefits to O. D. Pace, petitioner, for an injury he sustained while employed by the Kennecott Copper Corporation, respondent employer, [71 Ariz. 217] in the latter's power plant at Hayden, Arizona. It is only fair to state that the employer, a self-rater, strongly urged before the commission the justness of petitioner's claim.
It is obvious from the record that this case reaches us only because of the commission's dissatisfaction with our opinion in the recent case of Williams v. Industrial Commission, 68 Ariz. 147, 202 P.2d 898.
The facts, which are not in dispute, are as follows: On December 29, 1941, petitioner went to work for respondent corporation. He was required, as a condition of his continued employment, to have an inguinal hernia suffered in childhood surgically repaired. The operation was performed at petitioner's expense and was entirely successful. He continued working for the company without incident until February 2, 1950, when, in the discharge of his duties as a "blowing engine operator," the accident and injury complained of occurred. The accident was described by petitioner as follows: "While filling an oil can from a five-gallon reserve can, I slipped while lifting it over the push rod of the blowing engine. A very sharp pain hit me in the right groin." This strain, accompanied by severe pain in the hernial region, resulted in the immediate descent of the hernia. These facts were immediately communicated both to a fellow employee and the company's experienced surgeon, Dr. O. E. Utzinger. The latter, in his report, described the injury as a "recurrent right inguinal hernia," and on March 14, 1950, the damage was surgically repaired by him. Petitioner, because of the operation, lost 35 days' work.
Petitioner made timely application to the commission for compensation and accident benefits which were denied on the record then before it. Application for rehearing was granted and a formal hearing held after which the commission on July 3, 1950, affirmed its previous action.
The evidence, without contradiction, indubitably establishes that the hernia for which petitioner claims compensation is compensable under Sec. 56-959(b), A.C.A.1939. While the commission agrees that the petitioner suffered a hernia by accident arising out of and in the course of his employment and should be allowed compensation and accident benefits, still it bemoans its inability to make such an award and seeks to justify its refusal solely upon the ground that it is precluded from doing so by our recent decision in the Williams case, supra.
This unwarranted conclusion on the part of the commission forms the basis of petitioner's sole assignment of error. The commission, in addition, urges that the Williams decision in effect overrules the prior case of Maxwell v. Hart, 45 Ariz. 198, 41 P.2d 1089, which it claims should be controlling in the instant case.
As a basis for denying petitioner benefits, the commission apparently plucks from [71 Ariz. 218] the Williams opinion, entirely out of context, this statement: "* * * By reference to the code provision, 56-959(b), supra, it is readily apparent that there is no provision whatsoever for payment of compensation for nontraumatic recurrent hernia. The section by its terms provides for compensation for not to exceed two months only in cases of original injury. Under no fair ...