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Naylor v. Industrial Commission

Supreme Court of Arizona

July 7, 1961

Josephine Louise NAYLOR, widow, Dorothy N. Naylor, minor child, Petitioners, In the Matter of Russell Roscoe Naylor, Deceased,
v.
INDUSTRIAL COMMISSION of Arizona and Nealus Webb (S & W Garage), Respondents.

In Banc.

W. Edward Morgan, Tucson, for petitioners.

Donald J. Morgan, Phoenix, for respondent Industrial Commission; James D. Lester, Edward E Davis, C. E. Singer, Jr., Lorin G. Shelley, Phoenix, of counsel.

UDALL, Justice.

Certiorari to review an award of the Industrial Commission denying the application of petitioner to reopen a claim for workmen's compensation.

[89 Ariz. 395] The record discloses that Russell Roscoe Naylor, an employee of Nealus Webb d. b. a. S & W Garage, became ill while engaged in his employment on January 22, 1960. He was taken to the hospital where his condition was diagnosed as appendicitis. An operation was performed very shortly thereafter and, while still in the operating room, the patient suffered a cardiac failure and died.

The petitioner, Josephine Louise Naylor, filed a claim for widow's and dependent's benefits on the 3rd day of October 1960, alleging that the death of the deceased was due to a heart attack.

The attending physician, at the time of the death of the deceased, issued a certificate listing as disease or condition directly leading to death:

'(a) cardiac arrest due to (b) extensive severe stenosing coronary atherosclerosis, with degeneration and fibrosis of heart muscle of many years; mentioning interval appendicitis of two days as 'significant condition' (contributed to death but not relating to the disease or condition causing death).'

The record shows that the deceased had never reported any injuries during the period of his employment and an investigation did not disclose that an accident had occurred to the employee on the date in question.

Petitioner's attorney, by letter dated November 9, 1960, suggested the possibility that the petitioner would be able to show a medical connection between the death, and the strain and inoxia suffered by the deceased while engaged in his employment.

On the 25th of November, 1960, the Commission made its finding and award denying widow's and dependent's claim for death benefits. It further ordered that any party aggrieved by the award may apply for a rehearing of the same within twenty days after the service of this award as provided by the rules and regulations of the Commission.

In reply to the letter addressed to the Commission by petitioner's attorney, the

Page 580

Commission on November 30, 1960, sent the following letter to him:

'Re: Claim No. AU 36872

'Russell Roscoe Naylor ...


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