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Gomez v. Industrial Commission

Supreme Court of Arizona

May 7, 1951

GOMEZ
v.
INDUSTRIAL COMMISSION et al

Award Set Aside on Rehearing July 12, 1951. See 72 Ariz. 265, 233 P.2d 827.

Affirmed.

Leonard S. Sharman, of Phoenix, for petitioner.

Donald J. Morgan, Phoenix (H. S. McCluskey and Robert E. Yount, Phoenix, of counsel), for respondent Insurance Carrier.

Lockwood, Superior Court Judge. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur. Justice R. C. Stanford, being disqualified, the Honorable Lorna E. Lockwood, Judge of the Superior Court of Maricopa County, was called to sit in his stead.

OPINION

Lockwood, Superior Court Judge.

The petitioner, Cresencia Gomez, has appealed by certiorari for a review of an [72 Ariz. 70] award of the Industrial Commission of Arizona, respondent insurance carrier, which denied petitioner compensation for an injury suffered while in the employ of John M. Jacobs, doing business as John Jacobs Farms.

Petitioner has made two assignments of error, one directed to the Industrial Commission's findings, and the other to its Award, the grounds for both being that they were not supported by and were contrary to the evidence. For this reason we must examine the evidence in the record, not for the purpose of determining its weight, but to ascertain whether there was substantial evidence upon which the Commission could lawfully base such findings and award.

From the record, the facts appear as follows: Gomez, a man sixty-five years of age, was employed by John Jacobs Farms as a sheep herder, working twenty-four hours a day for seven days per week for nearly a year prior to March 14, 1950, with the exception of one day off, which time he spent visiting his family. On March 14, 1950, and some time prior thereto, while in the course of his duties, he lived in a tent located in one corner of a field owned and cultivated by his employer, which field had been ploughed some time before that date. His living arrangements were simple, consisting of the tent and a camp fire in which a dutch oven was partially buried.

On the date above mentioned, toward evening, a friend named Alejo Serna came to visit Gomez, and found him in the tent, on a cot, his clothes smoking, and the cot on fire. Serna took Gomez outside the tent, extinguished the fire from his clothes and the cot, and then went to get help. He brought a man back to the camp, and together they took Gomez to St. Monica's hospital. During all this time Gomez did not converse to any extent with anyone, except to tell Serna when the latter first arrived that he "fell". Upon arrival at the hospital it was discovered that he was suffering from severe burns on his legs, his right arm, his face, and his left arm, the last being so badly burned that the bone was charred, later necessitating its amputation between the shoulder and the elbow.

Page 687

On March 18, 1950, Evan S. Stallcup, a claims investigator for the Industrial Commission, went to the hospital to talk with Gomez, and on March 20th submitted a written report of his interview. In the report the investigator stated:

"He speaks little English. However, his nurse acted as interpreter, and I obtained his statement. No attempt was made to obtain a signed statement at this time, as both the claimant's arms and hands are still badly burned.

"The claimant states that on the evening in question he had finished his dinner and was sitting on his makeshift camp stool in front of his fire. Suddenly, he said, he felt an attack coming on. He fell off his stool and into the camp fire in front of him. At first he felt nothing and did not realize he [72 Ariz. 71] was on fire. (It is my knowledge that this is a common occurrence following a heart attack. Because of the paralyzing action of such an attack, no pain of any kind is felt for several moments following the attack.) He got up out of the fire, went into his tent and lay down on his cot. His friend, Serna, appeared to visit with him about this time and it was then, ...


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