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Smith v. Industrial Commission of Ariz.

Supreme Court of Arizona

April 5, 1955

Frank L. SMITH, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, and B. F. Hill, A. R. Kleindienst and F. A. Nathan, as Members thereof, and Grant E. Naegle (Naegle Property Services), Respondents.

Rehearing Denied April 26, 1955.

Burton Lewkowitz and John B. Marron, Phoenix, for petitioner.

Donald J. Morgan, Phoenix, for respondent, The Industrial Commission of Arizona, John R. Franks, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.

Page 798

UDALL, Justice.

Petitioner, Frank L. Smith, obtained a writ of certiorari to review an award of respondent Industrial Commission denying him compensation. The respondent promptly filed a motion to quash the writ and dismiss the petition for lack of jurisdiction, on the ground the award had become res judicata. We reserved a ruling upon this motion until the matter was heard on its merits.

An understanding of the problems presented by the motion to quash can best be developed by setting forth the following time-table of the various procedural steps taken:

Year 1954

June 22 Injury occurred.

July 20 Petitioner's report of injury and application for benefits.

August 4 Award entered denying compensation because injury did not arise out of and in the course of employment.

August 21 Notice of protest of award.

Sept. 11 Application for rehearing.

Sept. 20 Order entered denying rehearing and affirming previous award.

October 18 Petition for writ of certiorari filed in this court.

[79 Ariz. 19] Respondent contends that it necessarily denied petitioner's application for rehearing because it was not filed within the time required by Industrial Commission Rule 37. This Rule provides in part:

'In the event the party aggrieved by any award or decision of the Commission granting or denying compensation, filed his written notice of protest within twenty (20) days after the service of the award or the decision complained of, said notice of protest will stay said award or decision from becoming final and will allow said aggrieved party twenty (20) days from the date of filing * * * within which to file his application for a rehearing * * * . Failure to file said application for rehearing within said twenty (20) days from the filing of said written notice of protest constitutes a waiver of the right to rehearing.' (Emphasis supplied.)

From the schedule heretofore set forth it appears that Notice of Protest was timely filed, whith notice, on a form provided by the Commission, contained, inter alia, the ...


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