Blankenship v. Industrial Commission of Arizona

Decision Date14 May 1928
Docket NumberCivil 2680
Citation34 Ariz. 2,267 P. 203
PartiesANDREW J. BLANKENSHIP, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN and H. S. McCLUSKEY, Members of Said THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents
CourtArizona Supreme Court

Original proceeding for Writ of Certiorari to set aside award of The Industrial Commission, In re Andrew J Blankenship, Injury No. B-1780. Award affirmed.

Mr Elwood B. Frawley, for Petitioner.

Mr John J. Taheny, for Respondents.

OPINION

ROSS, C. J.

This is a proceeding in certiorari to review the findings of the Industrial Commission. Claimant, Blankenship, while an employee of the Apache Powder Company, on April 8th, 1927, claims to have suffered an injury to his back from an accident. He made demand for compensation. The Industrial Commission appointed a referee and sent him to the employer's plant at Curtis, Cochise county, Arizona, to take the evidence. This was done on June 7th, 1927. The referee accompanied his report of the evidence with a recommendation that the claim for compensation be not allowed. Thereafter, on June 15th, 1927, the Commission made findings of fact and an award that claimant take nothing.

The jurisdictional facts, including a finding that the employer was insured by the Industrial Commission against liability for compensation, were all favorable to the claimant, but finding No. 5 was to the following effect:

"That the evidence is insufficient to establish as a fact that said applicant sustained any injury by accident arising out of and in the course of his said employment on or about said date; and that the evidence is insufficient to establish as a fact that the disability suffered by said applicant subsequent to said date was proximately caused by an injury by accident arising out of and in the course of his said employment on said date or on any other date."

On June 30th, 1927, the claimant filed his motion with the Industrial Commission for a rehearing "for the reason and on the grounds that said commission erred in finding," as it did, that the evidence was insufficient, and in the application of the law to the facts. In due course this motion was denied and the original award confirmed.

Within thirty days after the Commission's decision on rehearing the claimant, as provided by section 90 of the Workmen's Compensation Act (chapter 83, Laws 1925), applied to this court "for a writ of certiorari to review . . . for the purpose of having the lawfulness of . . . the award on rehearing inquired into and determined." The statute (section 90, supra), provides that:

"The review shall not be extended further than to determine whether or not:

"(1) The commission acted without or in excess of its power.

"(2) If findings of fact are made, whether or not such findings of fact support the award under review."

The scheme of the Compensation Act is that the employer, the employee, or the insurer of the employer may, if aggrieved by the award of the Commission, take the matter to the Supreme Court for a review only in the two particulars named. If it shall appear that the Commission in making the award had jurisdiction of the subject matter and the parties, and in the exercise of such jurisdiction confined itself to the law, and if the findings of fact support the award, that puts an end to the court review. The latter's power over the award and the Commission is confined to very narrow and well-defined limits. The court can set aside an award if the Commission had no jurisdiction or power under the Compensation Act to make it, or if it was made in excess of the conferred powers, or if the findings do not support the award, but not otherwise.

In his petition for writ of certiorari claimant states that the action of the Commission in denying him compensation was not based upon its examination of the testimony and records, but upon the report of the referee, and without claimant's having an opportunity to object to the errors in said report. The truthfulness of this statement does not appear from the Commission's return to the writ. If the Commission did not examine "all the proceedings and the evidence taken in the case" and make their award thereon, evidence aliunde the record would be necessary to show it.

There is found in subdivision (b), § 90, supra, this expression:

"No new or additional evidence may be introduced in such court, but the cause shall be heard on the record to the commission as certified by it."

This statutory rule is in accord with the common-law rule as to what may be considered in the proceeding by certiorari. In 11 C.J. 111, § 51, it is said:

"The office of the common-law writ of certiorari is confined to bringing up the record alone, and any matters dehors the record which are returned therewith shall be disregarded. It follows that the writ does not lie to review defects not appearing on the face of the record."

It was never intended that the Commission's administration of the Compensation Act should be supervised, controlled, or regulated by the Supreme Court except in the respects heretofore mentioned. This is emphasized by section 91 thereof, reading as follows:

"The commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act."

A large discretion is left to the Commission in the performance of its duties over which the court has no power. In Hackley-Phelps-Bonnell Co. v. Industrial Commission, ...

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