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Inspiration Consol. Copper Co. v. Smith

Supreme Court of Arizona

March 1, 1955

Jerry B. SMITH, and The Industrial Commission of Arizona, Respondents.

Page 274

[78 Ariz. 356] Edward W. Rice, Globe, for petitioner.

Robert K. Park, Phoenix, for respondent The Industrial Commission of Arizona.

John R. Franks and Donald J. Morgan, Phoenix, of counsel.

PHELPS, Justice.

This case comes to us by certiorari to set aside an award of the Industrial Commission in favor of respondent Jerry B. Smith who claims he suffered an injury to his back on January 5, 1951, while in the employment of petitioner. The facts will be hereinafter more particularly set forth.

On the date the injury is claimed to have occurred respondent was working with and under the supervision of one Guy E. Ford who, according to petitioner's testimony, on that date made out, in part, an accident report which was completed by one Sylvan Lunt, Chief Clerk in the employment office of petitioner. Counsel for the commission states in his brief that this report was filed with both the petitioner and the commission. We are unable to find any such report in the files presented here for our review. There is a report filed by Dr. C. T. Collopy, a member of the medical staff of petitioner, on January 9, 1951. This report in no way corresponds with the description of the report claimed by counsel to have been filed on January 5.

After the close of the shift on the date of the injury respondent states that he went to the company hospital and saw Dr. Collopy who described the injury as 'slight limitation[78 Ariz. 357] of motion in all directions, tenderness of paraspinous muscles leaving no permanent defect,' and prescribed trigisig tablets (a pain killer) and hot applications. Respondent continued to perform his regular work as an underground electrician until August 28, 1952, without material loss of time from the injury. On that date he quit his job with petitioner stating that he had secured employment elsewhere. However, he went to visit members of his family at

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his old home in Kentucky where he visited for two or three months.

He then procured work with the North American Aviation Company at Columbus, Ohio, where he worked for several months as an electrician and then went to Detroit where he was employed as a car inspector by the Dodge Motor Corporation for about a month. He then returned to Miami and procured employment with the Miami Copper Company as an electrician. He worked there from February 24, 1953, to September 12 of that year. Respondent testified he went to the company hospital in April, 1953, and complained of low back pains and ascribed his back ailment to the accident and injury of January 5, 1951. Doctor Harris x-rayed or had x-rayed his back in the lumbar area which revealed nothing and at that time Doctor Harris gave respondent 'some shots in the back.'

Thereafter on September 12, 1953, respondent quit work because of the diabling back condition and a couple of days later called on Doctor Mark Wall, M. D., of Mesa who hospitalized him and referred him to Doctor John R. Green of Phoenix who disgnosed his complaints as stemming from a herniated disc. On September 21 Doctor Green and Doctor Alvin L. Swenson whom Doctor Green had called in for consultation, performed operations upon respondent correcting his injuries. The operation by Doctor Green confirmed his diagnosis that respondent was suffering from a herniated disc. Following the laminectomy by Doctor Green a lumbar sacral fusion was performed by Doctor Swenson for the purpose of stabilizing respondent's back at that point. After recovering from these operations respondent was discharged as being able to resume his employment and about the middle of January, 1954, returned to work for the Miami Copper Company which he had continued to the date of the hearing before the commission of February 2, 1954.

On September 29, 1953, respondent filed his claim with the Industrial Commission for compensation for the injuries suffered by him on January 5, 1951, while employed with petitioner. This is the first claim filed for compensation by the respondent with the commission for that injury. On November 5, 1953, the commission made its finding and award denying compensation to respondent upon the ground that his injury was not attributable to the accident of January 5, 1951.

On November 16, 1953, respondent by his attorney filed what is designated as a 'Notice[78 Ariz. 358] of appeal from findings and award on petition and application for readjustment or reopening of claim and denying further benefits.' Just what this is intended to encompass we are unable to determine. It is directed at the findings and award of November 5, 1953, which is not predicated upon 'a petition and application for readjustment or reopening of a claim.' Whatever jurisdiction the commission had in the premises had its source in the original petition bearing date September 18, 1953, and filed by the respondent with the commission on September 29, 1953, as above set forth.

That petition was in no sense of the word an application to reopen the case upon the ground that there had been a change in the physical condition of petitioner subsequent to a previous award and that there had developed new and undiscovered disabilities since that award. There had been no previous award. The commission had not been vested with any jurisdiction in this case prior to September 29, 1953, when it undertook to assume jurisdiction on an original petition for compensation nor was it justified in finding that its award was based upon new and undiscovered disabilities arising out of changed physical condition. There was not a scintilla of evidence in the record to support that finding. In making an award the commission exercises a judicial function and it acquires no jurisdiction of a case until a formal application for compensation is filed with it. Wise v. Six Companies, Inc., 43 Ariz. 24, 28 P.2d 1007.

Section 56-967, A.C.A.1939, provides in part that:

'* * * No application shall be valid or claim thereunder enforceable

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unless filed within one (1) year after the day upon which the injury occurred or the right thereto accrued.'

Clearly the application in the instant case was not made within one year from the date of injury. Section 56-967, supra, provides however, that if it is filed within one year from the date the right to a claim accrues it meets the requirement of the statute. The question here then is when did the right to file the claim accrue?

We said in Hartford Accident, etc., Co. v. Industrial Commission, 43 Ariz. 50, 29 P.2d 142, 144, that:

'We still hold that the claim must be filed within one year after the date of the injury if the injury is of sufficient magnitude to be compensable. But, if it is slight or trivial at the time and non-compensable and later on develops unexpected results for which the employee could not have been expected to make a claim and receive compensation, then the statute runs, not from the date of the accident, but from the date the results of the injury became manifest and compensable. Under section 1447 (56-967, A.C.A.1939) an employee is not required to file with the commission [78 Ariz. 359] an application for compensation until he is 'entitled to compensation.' The respondent was not entitled to compensation for the original injury because it did not permanently disfigure his face or incapacitate him to work. So of the other troubles resulting therefrom until the operation that resulted in a permanent disfigurement of his face. He was entitled to compensation when the later result was definitely known.'

In that case the respondent received an injury to his lip seriously bruising it. Later a sabaceous cyst which was removed by surgery and later a squamous cell carcinoma appeared which was removed by operation and produced the disfigurement upon which the compensation was based. This court further held in Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649, 652, that:

'* * * It is not every accident nor every injury arising from an accident which is compensable. The theory of the law is that it is only injuries which produce financial loss to the injured party that are compensable. * * *'

and again in Engle v. Industrial Commission, 77 Ariz. 202, 269 P.2d 604, we adhered to this rule.

It will be necessary to examine the evidence in this case in order to ascertain when the right to file a claim accrued to respondent herein after the injury to January 5, 1951. In his testimony before the commission on February 2, 1954, respondent stated that in attempting to remove a bonding machine weighing 'maybe 60 pounds' from the car tracks in the mine, when he picked it up and turned on his right foot to get away from the track before an approaching car reached him a pain hit him in his left hip and left back; that he had never been in an accident before and had never had any back or hip trouble before. He said after this happened he could stand up but could not stand straight; that his left hip was 'about so many notches' higher than the right one and that is the way it left him. He said after the accident he could sit down but he 'was crooked'. A lot of days he could not wear his tool belt because his left hip was so much higher than the right hip that the belt hurt him badly. When asked if he was able to carry on his job he replied that he didn't carry the tools or anything, that all he did was just stay on the job. He stated that he worked all the way through like that. He would have to lay off a couple days at a time but that he was not off any amount of time. While visiting with his relatives in Kentucky for two or three months he did no work. He stated that he did not get any better at any time after the injury of January 5, 1951, but got worse all the time and kept going down. Intermittently for a week or so, he said, he did not suffer much and then the next week or so it would be the same thing except a little harder.

[78 Ariz. 360] With respect to his condition while he was at his old home in Kentucky he was asked if he was able to get around during the time he remained there. He replied:

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'Just got around by dragging along is all.' He was then asked the following questions by his counsel concerning his physical condition while he was working ...

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