Opinion
No. 1 CA-IC 382.
February 1, 1971. Rehearing Denied February 19, 1971. Review Denied March 16, 1971.
Writ of certiorari to review lawfulness of award of the Industrial Commission, Claim No. BG-23116, that petitioner did not sustain injury by accident arising in course of his employment. The Court of Appeals, Case, J., held that evidence supported finding of Industrial Commission that petitioner did not meet his burden of proving by preponderance of the evidence both his injury and fact of alleged accident.
Award affirmed.
Gorey Ely by Joseph M. Bettini, Phoenix, for petitioner.
William C. Wahl, Jr., Counsel, Donald L. Cross, Former Chief Counsel, Phoenix, Industrial Commission of Ariz., for respondent.
Robert K. Park, Chief Counsel by R. Kent Klein, Phoenix, for respondent carrier State Compensation Fund.
Petitioner herein complains of an award entered by the Commission holding that petitioner did not sustain an injury by accident arising out of and in the course of his employment. A reading of the transcript indicates that there is a conflict in the evidence as to whether petitioner had an accident and sustained any injury. Petitioner has the burden of proving by a preponderance of the evidence both his injury and the fact of the accident. In re Estate of Bedwell (Bedwell v. Industrial Commission of Arizona), 104 Ariz. 443, 454 P.2d 985 (1969). The state of the evidence entitled the Commission to find that he did not meet that burden.
This case was decided under the law as it existed prior to 1 January 1969.
The award is affirmed.
STEVENS, P.J., and DONOFRIO, J., concur.