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Waller v. Howard P. Foley Co.

Supreme Court of Arizona

December 27, 1961

Roy A. WALLER, Petitioner,
v.
HOWARD P. FOLEY COMPANY, Defendant-Employer, and The Industrial Commission of Arizona, Insurance Carrier, Respondents.

In Banc.

[90 Ariz. 338] Joseph H. Morgan, Phoenix, for petitioner.

James D. Lester, Phoenix, Edward E. Davis, C. E. Singer, Jr., and Lorin G. Shelley, Phoenix, of counsel, for respondent Industrial Commission of Arizona.

JENNINGS, Justice.

On February 10, 1960 petitioner fell while working on a scaffold. Petitioner now claims injury to his back, shoulder, and neck as a result thereof. He was treated medically and his claim processed to a point where on May 2, 1960, the respondent Industrial Commission found, among other matters, as follows:

'5. That the average monthly wage of applicant prior to said personal injury was the sum of $243.63.

'7. That the medical evidence reflects that said applicant has no physical disability resulting from said accident.'

At the same time the Commission made findings and award for temporary disability as follows:

'$221.41 of which the sum of $182.66 has been paid leaving the balance of $38.76 payable forthwith.'

Within the time allowed by law petitioner protested and filed his petition and application for rehearing. The Commission's Rule 38 provides in part that a petitioner:

'* * * must set forth specifically and in detail the grounds * * * for

Page 796

complaint or rehearing, * * * [and] every ground of complaint or defense, * * * not so specified * * * shall be deemed fully and finally waived.'

Petitioner's ground of complaint stated:

'A medical report will be forthcoming from Applicant's physician in Arkansas stating that he is presently disabled as a result of an injury arising out of and in the course of his employment.'

Petitioner's average monthly wage was not set forth as a ground of complaint. Petitioner made no ...


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