James P. ENGLISH, Petitioner,
The INDUSTRIAL COMMISSION of Arizona, and Phelps Dodge Corporation, Defendant-Employer, Respondents.
Richey & Herring, Tucson, for petitioner.
John R. Franks and Robert E. Yount, Phoenix, for respondent Industrial Commission.
Evans, Hull, Kitchel & Jenckes, Phoenix, for respondent Phelps Dodge Corp.
In September, 1944, James P. English, petitioner herein, after physical examination [78 Ariz. 13] including x-ray of the chest was employed as a welder by the Phelps Dodge Corporation, respondent-employer. There was evidence which would support the contention of petitioner that about April 6, 1945, while welding a patch on the 'acid roasters', he was exposed to certain irritating gases resulting in his becoming ill, spitting and coughing blood and experiencing pains in his chest and joints. On April 14, 1945, after physical examination including chest X-ray he was advised he had not suffered an industrial accident and was ordered back to work and continued such employment until April 30, 1945, when he quit and went to work on a ranch. Thereafter, he was employed as a welder by another employer, but his health progressively deteriorated. He claimed to believe he was suffering from tuberculosis until April, 1950, at which time he learned to the contrary and in May, 1950, filed claim with the Industrial Commission of Arizona for compensation on the ground that the inhalation of gases in April, 1945, was the cause or contributing cause of his present disabled condition.
Originally, the commission refused to accept jurisdiction because the application was not filed within one year from the date of injury as required by section 56-967, A.C.A. 1939. Following certiorari to the commission this court held that an employee was not bound by the one-year limitation when in the exercise of reasonable care he was unable to make a correct diagnosis of his injury and sent the matter back to the commission for determination whether on hearing he could free himself from such limitation. English v. Industrial Commission, 73 Ariz. 86, 237 P.2d 815. Such hearing was held, resulting in an award that the claim was unenforceable because not filed within one year as required by the aforesaid statute and that petitioner had not suffered any injury by accident arising out of and in the course of his employment. We issued certiorari.
As grounds for setting the award aside, petitioner contends: (1) that English v. Industrial Commission, supra, is the law of
the case, and that the commission ignored the facts as established by the testimony of petitioner and further ignored the opinions of doctors as to medical facts; (2) that petitioner was denied due process of law in that the commission did not have before it for consideration the report of the commission's referee prior to making the award; and (3) that the award is not supported by the evidence.
The contention that the former case of English v. Industrial Commission is the law of the case is entirely without merit as even a cursory reading thereof will demonstrate. That the referee's report was not considered by the commission is refuted by the commission on rehearing wherein it finds that the report was before it at all times during its consideration of the cause. Petitioner presents nothing that would warrant this court in determining that the commission deliberately and falsely made this finding. We will not further consider this matter.
[78 Ariz. 14] There is thus left for consideration only the question of whether the award is supported by any substantial evidence and whether the commission ignored established facts.
In January, 1952, the commission ordered petitioner to report to Tucson, Arizona, for examination and investigation, including hospitalization if necessary. Five doctors conducted the investigation which included a consideration of the alleged history of the accident and examination of x-ray pictures. These doctors were of the view there was a causal connection between the inhalation of gas and petitioner's present disability. At the request of respondent-employer, the petitioner was personally examined by Dr. Melick. Drs. Kennedy and Watkins examined the following x-rays: the two heretofore mentioned as taken in 1944 and 1945, and three taken on March 3, 1950, January 11, 1952 and March 7, 1952, respectively. The latter two doctors rendered reports of their analysis thereof.
Dr. Melick reports an examination of the patient and the history of the case as reflected in the Industrial Commission file and an examination of the x-rays and concludes his report as follows:
'The report by Dr. Kennedy indicates that there were definite abnormal changes present in both the right and left lungs of this individual in September of 1944, some seven months before the patient was exposed to the yellow smoke. This finding leaves a very definite doubt in my mind that he was in perfectly good health at the time he was exposed to the smoke. Such being the case, I believe this individual has exhibited the type of progressive pulmonary change that I would expect in an individual who is afflicted (as the x-ray of 1944 reveals) with a combination of emphysema and bronchiectasis. I furthermore do not feel that his exposure to the smoke, as related in the history, has any direct relationship with his present condition. I think his present condition is one of natural progression of his pulmonary disease, and any irritation he might have suffered as a result of exposure to smoke was of a temporary nature only.'
Later, Dr. Melick filed another report which indicates that the x-ray of 1945 was not examined by him originally, and after stating another review of the voluminous file and the x-rays, he concludes:
'A review of the one additional x-ray that I did not see at my first examination of the file and x-rays on this man indicates to me that the film of April, 1945, is quite comparable to the film of September, 1944. I believe both of these chest films are abnormal. However, I think in order to complete the record this film of April 13, 1945, should be read by Dr. Kennedy (who gave the reading on the x-rays primarily) so that we may have his interpretation for the record.'
[78 Ariz. 15] Subsequent to these reports Drs. Melick and Watkins were summoned to testify and were thoroughly examined by counsel. While counsel for petitioner argues extensively with Dr. Melick concerning the true facts, a hypothetical question assuming all possible facts in favor of petitioner was ...