Opinion
No. 1 CA-IC 811.
August 28, 1973. Rehearing Denied October 30, 1973. Review Denied November 2, 1973.
On writ of certiorari to review the lawfulness of an award of the Industrial Commission, Claim No. 1/W-02-32, the Court of Appeals, Ogg, J., held that its decision, adverse to claimant, on his prior petition to reopen workmen's compensation claim, which petition involved the same "undiscovered disability" upon which the instant petition to reopen was based, was res judicata on the question of whether claimant's alleged permanent disability was causally related to 1960 industrial accident.
Award affirmed.
Machmer Schlosser Meitz, Ltd. by Ronald M. Meitz, Phoenix, for petitioner.
William C. Wahl, Jr., Chief Counsel, The Industrial Comm. of Arizona, Phoenix, for respondent.
Fennemore, Craig, von Ammon Udall by Michael Preston Green, Phoenix, for respondents.
This is a writ of certiorari to review the lawfulness of an award of The Industrial Commission of Arizona denying applicant's petition to reopen his claim arising out of an industrial related accident occurring on July 6, 1960.
Petitioner Dennis brought his claim before us once before and the issues presented were determined against him. Dennis v. Mountain States Telephone and Telegraph Company, 11 Ariz. App. 7, 461 P.2d 183 (1969). The history of petitioner's claim is fully set out therein and we need only add that on May 26, 1971 he filed another petition to reopen based on new, additional or previously undiscovered disability. The petition alleged that he had a 10% permanent disability and that such resulted from the 1960 accident. This is the same disability which was before us in our consideration of petitioner's earlier writ of certiorari and which we determined was not causally related to the accident.
The hearing officer's findings as affirmed by the Commission determined that the question of petitioner's disability and its causal relationship had been resolved by his earlier appeal to this Court and that petitioner was merely attempting to relitigate the very same question.
We hold that the matters presented herein have been finally adjudicated in this Court and are res judicata. London v. Industrial Commission, 71 Ariz. 111, 223 P.2d 929 (1950); Ocean Accident and Guarantee Corporation, Ltd. v. Kennison, 44 Ariz. 352, 37 P.2d 370 (1934); State Compensation Fund v. McComb, 16 Ariz. App. 303, 492 P.2d 1241 (1972). The award is affirmed.
DONOFRIO, P.J., and STEVENS, J., concur.