M. M. Sundt Const. Co. v. Industrial Commission of Arizona
| Decision Date | 17 October 1979 |
| Docket Number | No. 14483-PR,14483-PR |
| Citation | 124 Ariz. 94,602 P.2d 475 |
| Parties | M. M. SUNDT CONSTRUCTION COMPANY, Petitioner Employer, Employers Mutual Liability Insurance Company of Wisconsin, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Neftale C. Herran, Respondent Employee. |
| Court | Arizona Supreme Court |
Lewis & Roca by Merton E. Marks and R. Kent Klein, Phoenix, for petitioners employer and carrier.
John H. Budd, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.
Rabinovitz, Dix & Sands, P. C. by Bernard I. Rabinovitz and Fred R. Sands, Tucson, for respondent employee.
Respondent employee, Neftale C. Herran, has operated heavy construction machinery for 35 years. During the 12 to 15 years prior to 1977, he was employed by petitioner M. M. Sundt Construction Co., working primarily on highway and street construction. The noise level at such job sites was of such magnitude that hand signals were often essentially the only means of communication.
Approximately 15 years ago, respondent began to notice a ringing in his ears which would disappear within an hour after leaving work. In late 1977, while receiving ultrasonic sound treatment for a back injury, the ringing became permanent. Respondent sought medical advice on January 23, 1978, and, when informed that the impairment was immutable and job-related, filed the claim for workmen's compensation benefits here in question.
At the Industrial Commission hearing, petitioners Sundt Construction and its carrier, Employers Mutual Liability Insurance Company of Wisconsin, contested both causation and the timeliness of respondent's claim. The hearing officer found that respondent had sustained an industrial injury on January 23, 1978 and awarded appropriate benefits.
The Court of Appeals, in a memorandum decision, found the hearing officer's opinion lacking in sufficient findings of fact regarding the timeliness issue and set it aside. We granted the employee's petition for review pursuant to 17A A.R.S. Rules of Civil Appellate Procedure, rule 23.
The standard governing the specificity required of a workmen's compensation award was set forth in Sproul v. Industrial Commission, 91 Ariz. 128, 134, 370 P.2d 279, 283 (1962), where we stated that:
"(The) findings as made (at a workmen's compensation hearing) should be of such a nature that they necessarily dispose of all the material issues involved." (citation omitted)
Examination of the award entered in the instant case reveals that although it could have been more specific, it does sufficiently dispose of the timeliness issue. The decision holds that "the applicant sustained an industrial injury on January 23, 1978 . . . ." It factually supports this conclusion, citing the extreme noise level to which respondent was exposed as causing intermittent and finally permanent hearing disability on that date. Cognizant of the date of injury, we must in addition know whether or not respondent filed his claim within the one year permitted by A.R.S. § 23-1061(A) (Supp.1978).
Petitioners additionally argue that even if the award did sufficiently address the timeliness issue, since respondent knew of his hearing impairment at least 15 years ago, the Commission erred in finding the statute of limitations satisfied.
When deciding this issue, the court considers the evidence in the light most favorable to sustaining the award. McCormick v. Industrial Commission, 96 Ariz. 88, 392 P.2d 299 (1964).
A.R.S. § 23-1061(A) requires an applicant to give notice ". . . to the commission in writing within one year after the injury occurred or the right thereto accrued." It is well established in this state that the right to workmen's compensation benefits accrues when the employee knows or should have known that he had a compensable injury. McCormick v. Industrial Commission, supra; Freig v. Industrial Commission, 15 Ariz.App. 187, 487 P.2d 408 (1971). In Williams v....
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...symptoms would seem, in retrospect, to indicate the possibility of a permanent condition. See M.M. Sundt Construction Co. v. Industrial Commission, 124 Ariz. 94, 602 P.2d 475 (1979) (compensability of the condition did not become manifest until diagnosis disclosed the severity of the injury......
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...is a compensable injury, the statute of limitations does not begin to run. Id. at 166. See also M.M. Sundt Const. Co. v. Industrial Comm'n of Ariz., 124 Ariz. 94, 602 P.2d 475, 476 (1979) (awarding worker's compensation benefits to a construction worker after he was advised that the ringing......