Harold E. MARTIN, Petitioner,
INDUSTRIAL COMMISSION of Arizona and J. S. Sundt, Respondents.
[88 Ariz. 16] W. Edward Morgan, Tucson, for petitioner.
Donald J. Morgan, Phoenix, John R. Franks, James D. Lester, Frances M. Long, Phoenix, and Edward E. Davis, Glendale, of counsel, for respondents Industrial Commission and J. S. Sundt.
Certiorari to review an award of the Industrial Commission denying the application of petitioner to reopen a claim for workman's compensation.
It appears from the record that on November 29, 1942, Harold E. Martin, petitioner herein, was nailing a partition for his employer, the Sundt Construction Company, in Tucson, Arizona, when a plank struck petitioner on the back of the head and neck, or medically, between the scapulae. Thereafter, petitioner was examined by Dr. R. W. Rudolph, who filed an Industrial Report of Attending Physician, advising that he found soreness throughout petitioner's shoulder and neck area, for which a treatment of heat and bed-rest was prescribed. Petitioner was treated for a day or two and returned to work. For this injury, no claim for lost time was filed, nor workman's report of injury or claim for compensation made or filed. The Commission paid the $5 bill of Dr. Rudolph and closed its file on petitioner's case.
No further action was taken by petitioner in the matter until October 3, 1958, [88 Ariz. 17] when petitioner filed a claim for physical disability allegedly resulting from the 1942 injury. In support thereof, petitioner filed a letter containing history and complaints, inventory and examinations of Dr. Lindsay E. Beaton, with conclusions and recommendations. Thereafter, the Commission, on administrative hearing, based upon evidence submitted by petitioner and its own records, entered its award finding that it was without jurisdiction to entertain the claim on the ground that applicant failed to file within one year from the date the injury occurred, or the right thereto accrued, as provided by A.R.S. § 23-1061.
The petitioner filed a timely protest and petition and application for rehearing to this award, objecting to the justice of the award and alleging that he had not received a claim form at the time of the injury. It is from this order denying a rehearing and affirming the previous finding and award of the commission that this writ of certiorari issued.
In order best to understand the medical aspects of petitioner's case, we quote from the report of Dr. Beaton, dated September 29, 1958:
'History: This 60 year old white male dates his difficulties to an accident in 1942, when he was working as a carpenter for the Sundt Construction Company. While kneeling, a plank which had been leaning against the wall toppled and struck him between the scapulae. He believes that he was briefly unconscious. He was seen by Dr. Royal Rudolph, and was released to work in two days. He had a sore back and neck for about a week, and
his left arm tingled for a day or so. The present symptoms did not appear until about a year after his accident. This is especially true of the leg symptoms. Evidently he did not for some time associate the symptoms which began a year later with the injury in 1942. However, he tells me that he had to quit his job as a carpenter within a year after the accident, and at that time began some chiropractic treatments. By 1944 he had a definite right foot drop. For a time he had some involuntary motions of the right leg, described almost like a ballismus. There has been numbness of the leg, but no actual pain. In 1947, he had some sciatic distress briefly, which then disappeared. The present symptoms have been stationary for the past four to five years, and he has done no work since 1952. He complains particularly that his right leg flops when he walks, and that he drags the toe of the right foot. He cannot lift the foot far from the ground. Stiffness of the low back continues, particularly on exertion. The pain across the anterior chest is a much more recent complaint. It may [88 Ariz. 18] be noted that there has been negative electrocardiogram.'
In concluding his report, Dr. Beaton said:
'* * * Mr. Martin has definite evidence of a spinal cord lesion, which from the history and findings is probably an old one. This could well have been traumatic, and the neurological evidence is for a rather wide-spread lesion in the cord. One, therefore, suspects the possibility of a hemotomyelia at the time of his injury in 1942. The undersigned recognizes that there is no way now actually to prove such an injury, and the diagnosis is only offered as an explanation for the history and findings. I can only request that the Industrial Commission consider this man's problem, the history and the findings, as well as the present disability. It is, of course, entirely possible that some other spinal cord illness or accident has occurred in the years since 1942, but I am unable to obtain any history of such illness or accident from the patient.'
A.R.S. § 23-1061 provides, in part:
'D. No application for compensation shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the right thereto accrued.'
In determining the day upon which the right to compensation accrues, we follow the liberal rule that if an injury is slight or trivial at the time of the accident and not compensable, but later on there develop unexpected results for which the employee could not have been expected to make a claim, the statute of limitations runs from the time the injury becomes manifest and not from the date of the accident. Hughes v. Industrial Commission of Arizona,81 Ariz. 264, 304, P.2d 1066. Another statement of the test is that an employee should not be deprived of compensation when in the exercise of reasonable care he is unable to make a correct diagnosis of his injury. English v. Industrial Commission,73 Ariz. 86, 237 P.2d 815. But when the employee definitely becomes conscious of a serious injury arising out of and in the course of his employment to the extent that he is then and there entitled to compensation, it is his duty to make that fact known to his employer and to the Commission by filing ...