Award set aside.
Richey & Herring, of Tucson and Douglas, for petitioner.
H. S. McCluskey, of Phoenix, for the respondent Commission and Insurance Carrier.
Evans, Hull, Kitchel & Jenckes, and James Powers, all of Phoenix, for respondent Employer.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[73 Ariz. 88] This is a proceeding by certiorari to review an award of the Industrial Commission of Arizona denying claimant compensation.
Petitioner, James P. English, in April of 1945 was employed by the Phelps Dodge Corporation, as a welder, at its smelter located in Douglas, Arizona. He was assigned to work on the "roaster" platform above the "nitre stacks" in the acid plant. Due to the inhalation of nitric oxide and sulphur dioxide fumes he became ill and was off work for eleven days. After recovery he reported to the employer's hospital and a thorough physical examination, including X-rays of the chest, was made by employer's doctors N. V. Alessi and Max Helm. They advised him he had not suffered an industrial accident and ordered him back to work. The employer, or its doctors, made no report of this accident to the industrial commission, nor did petitioner at that time file an application with it for compensation.
According to petitioner's affidavit, he thought he was suffering from tuberculosis, and returned to work, but found the fumes aggravated his condition and resigned his employment on April 30, 1945. He performed light ranch work, as his health permitted, until April 1950, when he allegedly learned for the first time that he was not suffering from tuberculosis but that his condition was due to the inhalation of gas fumes. He then on May 15, 1950 filed application with the commission for compensation.
The commission refused petitioner a formal hearing and held as a matter of law that they were without jurisdiction in the case, because he had not filed his application within the one year as required by section 56-967. A.C.A.1939, which reads in part: "* * *. No application shall be valid or claim thereunder [73 Ariz. 89] enforceable unless filed within one (1) year after the day upon which the injury occurred or the right thereto accrued."
There is but one question in the case and that is whether the claim was filed in time. In other words when did the right to compensation accrue? Petitioner contends that it accrues when the employee knows or by the exercise of reasonable diligence should have known that he has sustained a compensable injury. The commission contends it accrues when the worker has sustained an injury by accident arising out of and in the course of his employment and because of the injury is off work for more than seven days. See section 56-961, A.C.A.1939. The employer argues that the assertion of the claim for compensation within the time specified is a condition qualifying the right vested by the statute, and relies upon the line of ...