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Kelsey v. Industrial Commission

Supreme Court of Arizona

July 12, 1955

Oscar KELSEY, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, and B. F. Hill, F. A. Nathan and A. R. Kleindienst, members thereof; and Minard-Kennison Realty and Construction Company, Inc., Respondents.

[79 Ariz. 193] H. S. McCluskey, Phoenix, for petitioner.

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

UDALL, Justice.

Petitioner, Oscar Kelsey (a man 53 years of age), while in the employ of Minard-Kennison Realty and Construction Co., Inc., was injured by an accident admittedly arising out of and in the course of his employment,

Page 196

which it was later found resulted in a permanent partial disability. The Commission assumed jurisdiction and by an order dated August 18, 1952, found the claim to be compensable. The petitioner being wholly dissatisfied with the awards thereafter made has by certiorari attempted to bring the whole matter before us for review. Respondent, the Industrial Commission of Arizona, appears as the insurance carrier. There was no appearance by the employer.

Petitioner, following his trade as a carpenter, went to work for the above-named employer on July 21, 1952. The next morning he was assigned to work on a proof where he was engaged in receiving sheeting lumber being handed up from below when he 'slipped on sawdust on roof and fell to ground, landing on both heels'. The fall was from a height of about eight feet. He was immediately hospitalized and X-rays showed bilateral fractures of the os calcis (calcaneus or heel bone) of both feet. After a two and one-half month stay in the hospital he was discharged therefrom on October 7, 1952, but still remained under doctor's care. Later, in March 1953, petitioner was re-hospitalized for a few days where a urinary disorder-claimed to have been caused by the original fall-was investigated fully. At all times the petitioner has had the best of medical care (he was treated or examined by at least a half dozen doctors during this two and one-half year period) and has received the accident benefits prescribed by law.

Rarely in a workmen's compensation case have we been confronted with such a voluminous record as is here presented. After petitioner employed counsel on March 5, 1953, procedurally speaking a legal marathon ensued. In all, a half dozen or more petitions for hearing or rehearing were filed; five formal hearings were held, the reporter's transcript thereof comprising some 427 pages; 91 documents, in addition to exhibits and transcripts, were certified over to us; and some six formal findings and awards were made. It would only create confusion and leave the reader in a haze for us to recite the various steps taken [79 Ariz. 194] or attempt to summarize the evidence adduced.

As to wage scale the Commission in the first instance determined that petitioner's earning capacity during the year preceding the accident (he had worked only one full day for this employer) averaged $145.80 monthly and for a time he was erroneously compensated for temporary total disability upon this basis. Thereafter the Commission, following the method approved in the case of Steward v. Industrial Comm., 69 Ariz. 159, 211 P.2d 217, used the average wage pattern of three other carpenters employed by this employer-as is provided for by section 56-952, A.C.A.1939-to determine that petitioner's average monthly wage was $397.76. The total temporary and partial temporary disability compensation was adjusted accordingly for the period July 23, 1952, to July 30, 1953. This aggregated the sum of $3,208.19, all of which has been paid. The same wage base was used in making the final award; however, petitioner stoutly maintains his monthly wage scale should have been fixed at $435.60.

A medical consulting board consisting of Doctors L. L. Stolfa, R. S. Haines, Joseph Bank and James R. Moore, on April 24, 1953, made a unanimous report to the Commission that in their opinion the petitioner's condition had become stationary and that he had sustained a 15% permanent physical functional disability. Furthermore they stated:

'His upper extremities function normally. His back is flexible, having an excellent range of motion. There is no back deformity present. * * *

'From a very careful review of this case and the consideration of the history, all of the information contained in the various reports on file, and the findings on examination we are of the opinion that the urinary condition described is not a result of any injury sustained in the accident in question. Furthermore, we are of the opinion that the spells of dizziness, weakness and fainting which he described are

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not attributable to the accident in question.'

The Commission by its award dated May 20, 1953, in effect adopted as a part of its findings the doctor's consulation report covering all of the above matters. In fairness it should be stated there was a slight conflict in the evidence on these matters. Petition for rehearing was filed and on December 18, 1953, the Commission reaffirmed its order of May 20, 1953.

Petitioner contends that these findings of the Commission relating to his average monthly wage, the stationary condition of his disability, and the lack of causal connection between the accident and [79 Ariz. 195] the claimed kidney disorder are erroneous. As stated, all these matters are encompassed within the findings and award reaffirmed on December 18, 1953. A petition for rehearing of this award was filed and subsequently withdrawn, and no appeal by certiorari was prosecuted to this court therefrom, as is provided by section 56-972, A.C.A.1939, although this was specified in the award as being petitioner's remedy. Under these circumstances this award has become final, and the findings of the Commission on these matters are res judicata and binding on petitioner and the ...


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