Zagar v. Industrial Commission of Arizona

Decision Date17 September 1932
Docket NumberCivil 3220,3221
Citation40 Ariz. 479,14 P.2d 472
CourtArizona Supreme Court

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award vacated and set aside and cause remanded, with directions.

Messrs Mathews & De Wolf, for Petitioner.

Messrs Frazier & Perry, for Respondent in Cause No. 3220.

Messrs Frazier & Perry, for Petitioner.

Messrs Mathews & De Wolf, for Respondent in Cause No. 3221.



The petitioner Zagar on October 21, 1927, while working for The Castle Dome Mines, Incorporated, was injured by an accident arising out of and in the course of his employment. Thereafter he filed with the Industrial Commission of Arizona a claim for compensation under the Workmen's Compensation Law, making parties thereto the employer and the insurance carrier, Employers' Liability Assurance Corporation, Limited.

A hearing on the application was had before the Industrial Commission, and, on May 19, 1928, the commission found that the petitioner had suffered "temporary disability" and awarded him compensation up to May 23, 1928, on that account in the sum of $756.24. The commission also found that he had suffered "permanent partial disability" and was entitled to compensation therefor in the sum of $95 per month for a period of twenty-five months, beginning May 23, 1928, the $95 being 50 per centum of his monthly wage at the time of injury.

Thereafter, upon an application by petitioner for a rehearing, the award for permanent partial disability was, on May 31, 1928, enlarged to thirty months at $95 per month.

The insurance carrier has paid the awards and also hospital and medical expenses for the time fixed by law.

On June 13, 1931, the petitioner filed his petition with the commission in which he alleged his condition had grown very much worse and asked that the case be reopened and evidence taken as to his condition at that time and for an increase or re-arrangement of his compensation as for permanent total disability. After a very thorough investigation, the commission found the petitioner was "suffering from permanent disability entitling him to additional compensation therefor at the rate of $47.50 per month, from the date of said petition (June 13, 1931) during the life of said applicant."

The employer and the insurance carrier, as also the petitioner, were dissatisfied with this award and they all petitioned for a rehearing. Later the employer and the insurance carrier withdrew their petitions, and the petitioner's petition for rehearing was denied.

The petitioner and the insurance carrier, by separate petitions, have brought the last award here for review.

The petitioner contends that under the evidence the last award was not for as much as the law provides, and that, at all events, it should have run from the twenty-third day of November, 1930, the expiration period of the thirty months' allowance, instead of from June 13, 1931, the date of filing petition for rehearing.

The insurance carrier contends that, at the time of application for increase or re-arrangement of award, limitation had run and that the award was not supported by the evidence.

The date from which an increase or re-arrangement of compensation may be allowed is fixed by the Compensation Act, section 1447, Revised Code of Arizona of 1928, as also the time within which an application or claim thereunder must be filed with the commission. That section reads as follows:

"§ 1447. Application for compensation or for increase; time limit. An employee entitled to compensation shall file with the commission his application therefor together with the certificate of the physician who attended him. The physician shall inform the injured employee of his rights under this article and shall lend all necessary assistance in making the application for compensation and such proof as required by the rules of the commission, without charge. Where death results from the injury, the parties entitled to compensation, or some one in their behalf, shall make application for the same to the commission, accompanied with proof of death and proof of relationship showing the parties to be entitled to compensation, certificate of attending physician, if any, and such other proof as required by the rules of the commission. Like application shall be made for an increase or rearrangement of compensation. No increase or rearrangement shall be operative for any period prior to application therefor, and any such increase or rearrangement shall be within the limits and classifications provided herein. No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the right thereto accrued."

The formal application for increase or additional award was made, according to the record, on June 13, 1931, and that is the time, as we read the statute, from which the last award should date. Doby v. Miami Trust Co., 39 Ariz. 228, 5 P.2d 187. "No increase or rearrangement shall be operative for any period prior to application therefor" is the language of the law. With this conclusion the petitioner cannot very well disagree, but he contends he made application for increase before November 23, 1930. He makes this claim on the fact that almost from the date of the first award he and the commission were corresponding, he in his letters expressing dissatisfaction with the award and the commission in its letters assuring him that, at the expiration of the first award, upon his application, the matter could and would be re-adjusted if his condition was worse. We think the statute contemplates a formal application for increase or re-arrangement, and, since none was made until June 13, 1931, that is the proper date for the commencement of any new or different award.

The insurance carrier directs our attention to the last sentence of section 1447, supra, and insists that the petitioner filed his claim for increase or re-arrangement of compensation after limitation had run. That sentence must be construed in connection with other provisions of the compensation law. The rights growing out of an injury do not always inure to the workman. If he survives the injury the compensation goes to him, and, if he reports to his employer immediately, or gives a satisfactory excuse for not doing so, and submits to an examination as provided in section 1446, his application for compensation may be filed at any time within a year from the date of his injury. If he dies as a result of the injury, death benefits accrue to his dependents, who must file their claim within a year from the date of his death. This, we think, is a reasonable construction of the above sentence in section 1447. It results therefore that, if the applicant files his petition for compensation within a year after his injury, it confers judisdiction on the commission to hear and determine his right to compensation, and, upon the proper application and proof, power to increase or re-arrange the compensation or death benefits.

In the award of May 19th and in the amendment to that award on May 31, 1928, the commission reserved jurisdiction to alter, amend or rescind the award upon good cause. The commission being empowered to increase or re-arrange the compensation subsequent to the award necessarily is authorized upon proper application to order a rehearing, and upon such rehearing, if the facts justify it grant an increase or order a re-arrangement of the award. This implies that such investigation is limited to an inquiry as to whether there has developed from the injury sustained new and undiscovered disabilities since the original award and which were not considered upon the granting of the original award. The disabilities shown by the evidence upon the original hearing were compensated by the original award. This follow as a natural consequence because the commission in making an award acts in a judicial capacity (Doby v. Miami Trust Co., supra), and its judgment upon the facts developed in the original hearing and award is res judicata upon such facts. An unreversed award must be treated as full compensation, and, unless subsequent thereto, new...

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