Maryland Casualty Co. v. Industrial Commission of Arizona

• Citation: 33 Ariz. 490,266 P. 11
• Decision Date: 09 April 1928
• Docket Number: Civil 2709
• Parties: MARYLAND CASUALTY COMPANY, a Corporation, Plaintiff, 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
• Court: Supreme Court of Arizona

266 P. 11

33 Ariz. 490

MARYLAND CASUALTY COMPANY, a Corporation, Plaintiff, 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

Civil No. 2709

Supreme Court of Arizona

April 9, 1928

Original proceeding for writ of review to set aside award of Industrial Commission, in re James M. Treahey. Award affirmed.

Mr. W L. Barnum and Mr. W. W. Rhodes, for Plaintiff.

Mr John J. Taheny, for Respondents.

OPINION

LOCKWOOD, J.

James M. Treahey, hereinafter called the applicant, on May 7th 1926, filed with the Industrial Commission of Arizona an application for compensation for an injury causing hernia which he alleged had occurred while he was employed by one F. H. Keddington as a binder in a bookbinding establishment in Tucson, Arizona, Maryland Casualty Company, a corporation, hereinafter called petitioner, was the insurance carrier of compensation liability for Keddington. A hearing was had, findings made by the Commission, and an award made, after which the petitioner asked for a rehearing. This was granted, and upon such rehearing the Commission again made findings and an award, whereupon petitioner filed its application with this court for a writ of review.

There are some six grounds set up in petitioner's brief in support of its contention that the award should be set aside. They read as follows:

"I. That the Industrial Commission of Arizona was without jurisdiction to make an award.

"II. That the applicant, James M. Treahey, failed forthwith to report the alleged accident to his employer, F. H. Keddington, as required by subsection D of section 79 of the Workmen's Compensation Law of the state of Arizona [Laws 1925, c. 83].

"III. That the Industrial Commission of Arizona abused its discretion in finding No. 9 in relieving the applicant, James M. Treahey, from loss or forfeiture of compensation by reason of his failure to report immediately the accident and injury claimed to have been sustained by him, for the reason that there is no evidence to show any excuse or reason for the failure to so report.

"IV. That the applicant, James M. Treahey, did not sustain an injury by an accident arising out of and in the course of his employment causing the disability described in the award of the Industrial Commission of Arizona dated May 31st, 1927, and that of said commission on rehearing dated October 14th, 1927.

"V. If applicant suffered disability from hernia, it was not traumatic hernia, as shown by his application and the evidence and proof submitted in support of his claim.

"VI. That the evidence and claim of the plaintiff filed with the Industrial Commission of Arizona, and all of the proof submitted in support of his said claim show that the plaintiff is not entitled to compensation under the terms of section 71 of the Workmen's Compensation Law of the state of Arizona."

We shall consider them in their order.

We have held in the case of Federal Mut. L. Ins. Co. v. Industrial Commission, 31 Ariz. 224, 252 P. 512:

"It is true the commission is not a court. . . . It is nevertheless a tribunal established by the Legislature, and having bestowed upon it the right to determine questions of fact and to apply the existing law thereto. . . .

"This court will not, in a proceeding brought under section 90 of the act [Laws 1925, c. 83,] review or consider any matter which was not fairly presented to the commission for its determination."

A proceeding on a writ of review from an award of the Industrial Commission is in effect an appeal from the decision of such Commission, and, except when otherwise provided by statute or the rules of this court, should be governed by the same principles as appeals from the superior court. We therefore will consider in matters of this kind the specific grounds of objection set up by the petitioner as taking the place of assignments of error in the ordinary appeal, and any objection not so set up will be deemed as waived.

The first objection above set forth is, of course, general, and depends upon the ruling on the others.

The second is that the applicant failed to report the alleged accident "forthwith" to his employer as required by subdivision (c), section 79, Workmen's Compensation Law (Laws 1925, chap. 83). This subdivision reads, so far as material, as follows:

"(c) Whenever any accident occurs to any employee, it shall be the duty of the employee to forthwith report such accident and the injury resulting therefrom to the employer. . . ."

The evidence shows that the accident occurred on the 18th of December, 1925, but that it was not reported until March, 1926. Counsel have spent a good deal of time in discussing how soon a report must be made and the meaning of the word "forthwith" in the subdivision above quoted. We are satisfied that a delay of three months is not "forthwith." The accident is not made "forthwith," no compensation is to be paid for the injury. It also provides, however:

"But it shall be within the discretion of the Arizona Industrial Commission to relieve said injured person or his dependents from such loss or forfeiture of compensation, if the said Arizona Industrial Commission shall be of the opinion, after investigation, that the circumstances attending the failure on the part of the employee, or of his physicians, to report said accident and injury are such as to...