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Swatzell v. Industrial Commission

Supreme Court of Arizona

November 29, 1954

Russell C. SWATZELL, Petitioner,
v.
The INDUSTRIAL COMMISSION of the State of Arizona, and B. F. Hill, A. R. Kleindienst, and F. A. Nathan, members of The Industrial Commission of The State of Arizona; and Navajo Tribal Sawmill, and Navajo Tribal Council, Respondents.

Page 245

[78 Ariz. 150] H. S. McCluskey, Phoenix, for petitioner.

Donald J. Morgan, Phoenix, John R. Franks and Robert K. Park, Phoenix, of counsel, for respondent Industrial Commission.

No appearance for respondent employers.

UDALL, Justice.

This is a 'no insurance' case. Petitioner, Russell C. Swatzell, invoked the remedy afforded under the provisions of Section 56-947, A.C.A.1939, which prescribes the liability of an employer failing to comply with the Arizona Workmen's Compensation Law, Art. 9, Chapter 56, A.C.A.1939, as amended, and more particularly Section 56-932 thereof. Respondent, the Industrial Commission of Arizona, acting in its quasi-judicial capacity, concluded that it was without jurisdiction in the premises and entered an award dismissing petitioner's claim for compensation. By certiorari its action is brought before us for review.

The pertinent facts from which the claim arose are not in dispute. Petitioner Swatzell, a white man, went to work an May 20, 1946, as 'woods superintendent' in a timber enterprise known as the 'Navajo Tribal Sawmill' located on the Definance Plateau within the boundarise of the Navajo Indian Reservation in Apache County, Arizona. He was hired at a salary of $300 a month through Frank L. Carter, Project Superintendent of this enterprise, with the consent and approval of Superintendent Stewart who was then in charge of the Navajo Agency at Window Rock. Arizona, which is under jurisdiction of the Bureau of Indian Affairs, U. S. Department of the Interior. Petitioner and other

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similar workmen on this enterprise were not under civil service nor were they otherwise directly employed by the U. S. Government. They were paid not from moneys appropriated by the Congress but by government checks drawn on tribal funds received from the sawmill operations. [78 Ariz. 151] Counsel for petitioner maintains that these employees were not insured or covered under the Federal Employees Compensation Act.

Petitioner, on October 1, 1946, while in the course of this employment, slipped and fell while carrying a portable power saw, suffering therefrom a lower back injury. He was immediately given treatment at the Government Indian Hospital at Ft Defiance, and when released three days later he went back to work. His wages continued during this short disability period and it appears that there was some type of insurance with a private carrier-which was not workmen's compensation insurance. According to petitioner he reluctantly accepted payment of $43.74 from the Western Adjustment Bureau upon their assurance that it would not prejudice his subsequent rights in the matter.

Petitioner continued in this work until February 24, 1951, when he entered other employment for a time and later acquired a half interest in 'a little dirt moving outfit', thus becoming self-employed. The claim for compensation states he suffered occasional pain in his back but was able to work regularly, until early February of 1953, when he suffered such pain and disability from his injured back that on February 24th he was forced to cease work altogether and he has not worked since. He did not sustain any further injury subsequent to October, 1946. A physician was consulted and his condition diagnosed as a 'protrusion of a degenerated intervertebral disc, with impingement of the fifth nerve root on the right.'

An application for compensation based upon the original injury was filed with the respondent Commission some six years and seven months after the accident occurred and long after termination of the employment with alleged employer. In following this course the petitioner waived his right to sue his employer, the relief prayed being a compensation award that might be docketed as a judgment with the Clerk of the Superior Court.

The findings made as a basis for denial of compensation may be summarized as follows:

1. That the injury alleged became manifest immediately after it occurred on October 1, 1946, and that no claim was filed within the statutory period of limitation.

2. That there was no causal connection between the 1953 disability of petitioner and the injury allegedly suffered in 1946.

3. That at the time of injury petitioner was employed by an 'agency or instrumentality' of the United States.

4. That the alleged employer had no compensation insurance contract under the ...


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