Schnatzmeyer v. Industrial Commission

• Decision Date: 15 November 1954
• Docket Number: No. 5965,5965
• Citation: Schnatzmeyer v. Industrial Commission, 276 P.2d 534, 78 Ariz. 112 (Ariz. 1954)
• Parties: Edward Henry SCHNATZMEYER, Petitioner, v. The INDUSTRIAL COMMISSION of the State of Arizona, and B. F. Hill, A. R. Kleindienst and F. A. Nathan, Members of The Industrial Commission of the State of Arizona; and Forrest Leinenwever, Defendant Employer, Respondents.
• Court: Arizona Supreme Court

Page 534

276 P.2d 534

78 Ariz. 112

Edward Henry SCHNATZMEYER, Petitioner, v.The INDUSTRIAL COMMISSION of the State of Arizona, and B. F. Hill, A. R. Kleindienst and F. A. Nathan, Members of The Industrial Commission of the State of Arizona; and Forrest Leinenwever, DefendantEmployer, Respondents.

No. 5965.

Supreme Court of Arizona.

Nov. 15, 1954.

H. S. McCluskey, Phoenix, for petitioner.

John R. Franks, Phoenix, for respondent, Industrial Commission.Donald J. Morgan and Robert K. Park, Phoenix, of counsel.

WINDES, Justice.

This case is presented for the second time on certiorari to the Industrial Commission.Schnatzmeyer v. Industrial Commission, 77 Ariz. 266, 270 P.2d 794.Therein we set the award aside because of a mathematical miscalculation of the compensation to which petitioner was entitled, assuming other facts found by the commission in making the award were legal.We further held therein that there existed an ambiguity as to whether the unemployment was due solely to petitioner's lack of effort to secure employment or partially due to disability.We also held that if it be a fact that such employment was partially due to disability, that fact should be considered in making the award.After this decision, the commission reconsidered the matter informally, presumably upon the record before it, without the petitioner being given an opportunity to be present.Upon such reconsideration the commission made amended findings and award, correcting the arithmetical error and harmonizing the ambiguous findings by making FindingNo. 10 to the effect that his inability to obtain work was due solely to petitioner's failure to make diligent effort to that end.

Petitioner filed application for rehearing specifying many grounds therefor, including the ground that said FindingNo. 10 was not sustained by the evidence, and demanded the right to cross-examine all witnesses upon which the commission relied.This petition for rehearing was denied and we issued certiorari.

By the provision of section 56-972, A.C.A.1939, the limit of this court's power is to either affirm or set aside the award.Paramount Pictures, Inc., v. Industrial Commission, 56 Ariz. 352, 106 P.2d 1024.When an award is set aside, it is the right and duty of the commission to reconsider all the issues of fact involved in the proceedings, including the taking of new evidence if available.In other words, there must be a trial de novo.King v. Alabam's Freight Co., 40 Ariz. 363, 12...