Scruggs, Butterfield & Rucker, Tucson, for petitioner.
Robert E. Yount, of Phoenix, for respondent Industrial Commission. Robert W. Pickerell and H. S. McCluskey, Phoenix, of counsel.
Phelps, Justice. Udall, Stanford, De Concini and La Prade, JJ., concur.
[73 Ariz. 75] This cause comes to us on a writ of certiorari.
The facts are that on May 26, 1949, while employed by Tom Flaherty doing business as Tom Flaherty's Furniture Company in Tucson, William E. Posey suffered an injury by accident arising out of and in the course of his employment. The injury consisted of a fracture of the navicular bone of the left wrist, also referred to as the carpal scaphoid. At the time the injury occurred Flaherty was not carrying industrial insurance although then employing three or more people. Immediately after learning of the injury he referred Posey to Dr. Robert W. Grant, an osteopathic physician and surgeon for examination and treatment. Dr. Grant in turn had Posey go to Dr. David Marcus, physician, for an X-ray picture of the injured wrist. Dr. Marcus made X-ray pictures thereof but neither he nor Dr. Grant discovered from an examination of the films made, any evidence of a fractured bone.
On the following July 2 Posey returned to the office of Dr. Grant and complained of suffering considerable pain in the injured wrist. Dr. Grant again directed that Dr. Marcus take X-ray pictures of the injured area, which he did. These films plainly disclosed a fracture of the navicular bone of the left wrist and with this lead the doctors were then able to see evidence of the fracture in the first film.
The latter films clearly showed a separation of the fragments of the edges of the break and on films made in October of that year there was marked evidence of nonunion indicating that surgery was the only remedy available.
Dr. Grant advised Posey, after reading the X-ray films made July 2 that a cast should be applied to his wrist. Posey stated at that time that he had to work to support his family and that he could not wear the cast and perform the work he was then doing which was pipe cutting and fitting, etc. There is a slight conflict in the evidence bearing on this particular incident. Regardless, however, of what may have [73 Ariz. 76] been said by Dr. Grant and Posey concerning the casting of the wrist, the fact remains that no cast was ever applied to it.
Dr. Grant made no report of Posey's injury to the Industrial Commission until August 3, 1949. He made this report upon the request of Flaherty or one of his employees. Posey had previously on July 23 filed ...