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Foutz v. Phelps Dodge Corp.

Supreme Court of Arizona

October 1, 1951

FOUTZ
v.
PHELPS DODGE CORP.

Award affirmed.

Leonard S. Sharman, of Phoenix, for petitioner.

Robert E. Yount, Phoenix (H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel), for respondents, Industrial Commission of Arizona.

Evans, Hull, Kitchel & Jenckes, and James Powers, of Phoenix, for defendant-employer.

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

OPINION

Phelps, Justice.

[72 Ariz. 351] On June 4, 1936, petitioner Ed Foutz, while employed by the Phelps Dodge Corporation, hereinafter called the company, was injured by an accident arising out of and in the course of his employment.

Thereafter petitioner filed a claim for compensation with the Industrial Commission, hereinafter called the commission, and on May 27, 1938, an award was made by the commission in which it found that petitioner had suffered a permanent partial disability equal to 40% loss of function of the right leg entitling him to compensation in the sum of $ 73.36 per month for a period of 20 months.

The findings of the commission in the instant proceeding are to the effect that medical evidence, adduced prior to the award of May 27, 1938, indicated the advisability of surgery to reduce the functional impairment of petitioner's right leg, but that petitioner [72 Ariz. 352] did not wish to submit to the surgery recommended but wished rather to accept, in lieu thereof, a permanent partial disability rating.

The evidence of medical witnesses is that such operation would have reduced the

Page 43

functional impairment of the right leg 15% to 20% and that such operation is considered to be a minor surgical operation.

Petitioner returned to work with the company and continued in such employment, working intermittently, until December 1947. The records of the company show that he remained away from his job from December 27, 1947, to March 1, 1948, without leave and that during that period he did not consult a doctor. This conduct according to the ...


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