[Copyrighted Material Omitted]
Award set aside in part and affirmed in part.
Hall, Catlin & Molloy, of Tucson, for petitioner.
Norman Herring of Richey & Herring, of Douglas and Tucson, amicus curiae.
H. S. McCluskey, of Phoenix, for respondent Industrial Commission. Donald J. Morgan and Robert E. Yount, of Phoenix, of counsel.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[73 Ariz. 26] Our original opinion in this matter is reported in 72 Ariz. 299, 233 P.2d 1082. A motion for rehearing was granted in this case so that the court could consider whether the "award" of the commission dated June 12, 1950 was in truth and fact an award upon which certiorari could be predicated under section 56-972, A.C.A.1939, which provides for "Appeal to Supreme Court" in Workmen's Compensation cases; and if so, whether the commission had jurisdiction to enter the order it did under the "award" dated June 12, 1950.
For the sake of clarity we deem it advisable to rewrite the opinion in its entirety. The facts are as follows:
Petitioner, Frank E. Pressley, on March 9, 1950, was in the employ of Pioneer Constructors, a firm engaged in construction of a sewer line in Tucson, Arizona. At about one o'clock, p. m. that day he was seriously injured by a gas explosion in a manhole where he was working. He was taken to a hospital, where he remained until April 15th, and was finally discharged by his physician on June 9th. The initial report of accident required by law was filed with the Industrial Commission on March 13th together with the report of the attending physician. On March 22nd a workman's claim for compensation was filed with the commission, signed "Frank Pressley, by E. L. Kettenback, M.D." Both the doctor and Pressley testified that the latter never requested Dr. Kettenback to sign the application or to file the same.
On March 29th the commission entered findings that petitioner suffered an injury by an accident arising out of and in the course of his employment, and ordered that Pressley was entitled to compensation under the Act, and accepted responsibility for the medical benefits and compensation provided thereby. On the same day, the commission wrote Pressley that his claim for compensation was not properly signed and enclosed application forms partially filled in by the commission. Pressley signed these forms on March 31st and returned them, but did not fill in any of the remaining blanks, among which were questions inquiring if any third party was liable for the accident. They were filed with the commission and thereafter it paid, for medical benefits, the sum of $ 859. On April 5th the commission sent petitioner a check for compensation which was returned by him on about April 28th. On May 1st the petitioner executed, on a form provided by the commission, an election of remedies as follows:
"2. Elects to proceed under the provisions of Section 56-949, Arizona Code 1939, as amended and supplemented, against said third party and to herewith file claim against said defendant employer and defendant insurance carrier only to the deficiency, if any, between the amount actually collected from said third party and the compensation provided or estimated under [73 Ariz. 27] Articles 9 and 12, Chapter 56, Arizona Code 1939, as amended and supplemented; and also agrees not to compromise any action or ...