Elizabeth HENNINGER, widow of Merle Henninger, Deceased, Petitioner,
Marlin S. PORTER, Respondent Employer, and Industrial Commission of Arizona, Respondent.
[85 Ariz. 185] Conner & Mahoney, Phoenix, for petitioner.
Axline & Shelley, Holbrook, for respondent employer.
James D. Lester, Phoenix, for respondent Commission.
This is a 'no insurance' case. It grows out of a claim by Elizabeth Henninger against Marlin S. Porter, employer, for death benefits under the Workmen's Compensation Law for the death of her husband, Merle Henninger, caused, as claimed, by an accident arising out of and in the course of his employment. The petitioner, being dissatisfied with the noncompensable award as to 'death benefits' made by the Industrial Commission of Arizona (hereinafter referred to as Commission), brings the matter by certiorari to this court for review.
Henninger, aged 58 years, an experienced caterpillar tractor operator, was employed on December 23, 1954, by contractor Porter who was building roads in the Heber area. Porter will hereafter be referred to as respondent or employer.
It is conceded that on December 28, 1954, Henninger suffered an injury due to an accident which arose out of and in the course of his employment. At the time, he was pushing logs with the 'cat' when a limb accidentally flew up, hit him across the side of the head, and knocked him out. The attending physician, Dr. Ellsworth of St. Johns, described the nature and extent of the injury as:
'Linea fracture of skull, lacerated right ear with half of it destroyed, cerebral concussion, fracture involving semi-circular canals and nerve center of balance.'
[85 Ariz. 186] Shortly thereafter the injured man was moved from the St. Johns Community Hospital to Phoenix where better medical facilities were available.
Merle Henninger was never able to return to work and died on September 23, 1956. This workman during his lifetime made timely application for compensation and, although the respondent-employer--who had 12 or 15 employees at the time--was not insured as required by law, the Commission properly assumed jurisdiction under the provisions of A.R.S. § 23-907,
which allows an award to be made against a non-insured employer. The Commission first made decedent an award for temporary disability and later entered a final award for compensation for temporary total disability covering a period of 21 months, i. e., from date of injury to date of death. In all, $5,023.50 was paid thereunder and no questions are here raised as to the correctness of these awards.
Upon the death of decedent, his widow petitioned for death benefits under A.R.S. § 23-1046, claiming that his death was causally connected with the original injury. Based upon the record then before it the Commission, on January 25, 1957, awarded her death benefits. Application for rehearing was filed by the respondent employer. A rehearing was granted and considerable testimony, mostly medical in nature, was adduced. Thereafter the Commission reversed itself and by an award dated May 15, 1957, ordered that petitioner 'take nothing by reason of her widow's claim for death benefits.' Its pertinent findings made in support of this order are:
'1. That claimant Merle Henninger's death on September 23, 1956, was in no way due to or proximately caused by his accident of December 28, 1954, or the injuries sustained therefrom.
'2. That claimant Merle Henninger's accident of December 28, 1954 and his injuries sustained therefrom in no way caused in whole or in part or contributed in whole or in part to his death on September 23, 1956.
'3. That claimant Merle Henninger's death on September 23, 1956, was the result of a physical condition totally and completely unrelated to his accident of December 28, 1954 and injuries sustained therefrom. * * *.'
Petitioner has astutely recognized her burden, and in her sole assignment of error sets out the grounds she relies ...