Farr v. Mid-Continent Lead & Zinc Co. , 151 Kan. 51 ( 1940 )

Harvey, J.

(dissenting): I am concerned to see sections 27 and 28 of our workmen’s compensation act (G. S. 1935, 44-527, 44-528) construed so as not to be in conflict, but so that each has a function to perform in the scheme of the law. Presumably the legislature regarded them as applying to different situations, or both would not have been embodied in the same act. Our last general revision of the law (Laws 1927, ch. 232) was the result of legislative consideration of the conflicting ideas of opposing groups viewed in the light of the experience of previous legislation on the subject. The result was a new set-up in handling this class of injuries of workmen. A compensation commission was created, with administrative and judicial functions, where settlements between workmen and employers were to be recorded and approved and claims not settled were to be heard and determined. The jurisdiction of courts was limited to appeals from the compensation commission. A new procedure was devised. This was designed to eliminate technical rules of evidence and procedure applicable to cases in courts of record, the purpose of this being to enable the compensation commission more readily to get to the real merits of the matters involved in any accidental injury of the workman to whom the act is applicable. The natural rights of the parties to agree were recognized, even encouraged, but with the thought of avoiding injustice such agreements were made subject to the approval of the compensation commission. To avoid injustices which had arisen under previous acts, a few definite rules of procedure were laid down; for example, that in the absence of an agreement between the parties a claim for compensation must be in writing and made within a specified time (G. S. 1935, 44-520a), and that appeals to the courts should be taken promptly and within a time specified (G. S. 1935, 44-556); but these specific provisions are not involved here.

The legislature was endeavoring to be fair both to employers and employees within the purview of the act. It is clear the legislature intended that a workman entitled to compensation under the act should not be barred therefrom because of some irregularity in procedure not by the act made specifically imperative or essential.

In this case the trial court found that the workman was “totally and permanently disabled as a result of said accidental injury and is entitled to compensation for a period not to exceed 415 weeks at the rate of $13.68 per week,” and also found, “this is an extreme case and that the claimant is entitled to medical and hospital expense in an amount not to exceed $500.” The court rendered its judgment and decree in harmony with these findings. Nowhere in the numerous briefs filed, or arguments made on behalf of appellant in this case, is there any contention that these findings are unsupported by the evidence. The facts that the parties were operating under the workmen’s compensation act; that claimant’s wages were such that his compensation for injuries under the act would be computed at $13.68 per week; that he sustained an injury by accident arising out of and in the course of his employment, as a result of which he is totally and permanently disabled; and that it is an extreme case, authorizing the expenditure of the maximum amount for hospital and medical attention, are nowhere controverted by appellant. If claimant is defeated in receiving what ordinarily he would be justly entitled to receive, it is because the position of the appellant must be sustained on one or both of the points argued in its behalf.

Appellant contends the judgment of the trial court must be reversed and judgment rendered for respondent for one or both of two reasons: First, and primarily, because on November 2, 1937, the compensation commissioner, upon an agreement and stipulation of the parties, made a lump-sum award of $150 (in addition to compensation of $150.48 previously paid), which sum was paid promptly, and claimant’s receipt therefor was filed with the compensation commissioner November 15, 1939, and approved; that the proceedings to set aside that order and receipt were begun June 6, 1938, and that under section 28 of the act (G. S. 1935, 44-528) a petition for review and modification of an award must be filed before final payment of the award. It is argued that since an award was made by the commissioner in November, 1937, section 27 of the act (G. S. 1935, 44-527) has no application, and since the final payment of the award was made in November, 1937, a petition to have it reviewed and modified, filed in Jun'e, 1938, is too late.

Second, appellant contends that even if section 27 of the act is applicable, the evidence is insufficient to support the finding of the trial court that the agreement and stipulation entered into between the parties in November, 1937, upon which the compensation commissioner acted, was entered into as a result of a mutual mistake. I shall not dwell on this point further than to say that as I read the evidence it is sufficient to sustain the finding of the trial court.

Passing provisions for arbitration contained in section 22 (G. S. 1935, 44-522) and mentioned in other sections of the act, and which are not involved here, I think it reasonably clear from the act as a whole and its several provisions that when a workman is injured, under circumstances which entitle him. or his dependents to compensation under the act, two methods are provided for determining the amount of compensation: (a) An agreement between the parties, or (6) the filing of a claim before the commissioner, a hearing thereon, and the making of an award.

Section 21 of the act (G. S. 1935, 44-521) reads:

“Compensation due under this act may be settled by agreement; subject to the provisions contained in section 27 of this act.”

Section 27 of the act (G. S. 1935, 44-527) provides, in part, for the filing of such agreements with the compensation commissioner and their approval by him and that no proceeding can be brought by either party to set aside such an agreement later than one year after it is filed. Under this section it was held, in Walker v. Kansas Gasoline Co., 130 Kan. 576, 287 Pac. 235:

“The commission empowered to administer the workmen’s compensation act of 1927 has jurisdiction to hear and determine an application to set aside an agreement, release and final receipt, upon grounds of mutual mistake, fraud or misrepresentation, and to award such compensation as is equitable and just.”

In this case there was an agreement entered into which was filed with the compensation commissioner November 2, was acted upon and approved by the commissioner, and the receipt filed with the compensation commissioner and approved under the statute. The proceeding to set it aside on the ground of mutual mistake and fraud was begun within a year.

The other method of determining the amount due is by filing a claim for compensation, as provided for by section 41 (G. S. 1935, 44-534) of the act, and a hearing had in conformity with section 34 (G. S. 1935, 44-549), and other provisions of the act. Upon such a hearing the commissioner has no authority to render a lump-sum award. (G. S. 1935, 44-525.)

Now, the real question in this case is whether the compensation commissioner, in November, 1937, did anything more than approve an agreement between the parties; It is true he called what he did the making of an award, because the parties had agreed that he might make an award, but whatever he did was done under and by virtue of the agreement of the parties, and not otherwise. The trial court held that the legal effect of what the commissioner did in November, 1937, was to approve an agreement of the parties authorized under section 21, to which section 27 is specifically made applicable. Since that section is specifically made applicable, the provision therein for setting aside the order, or receipt based upon such an agreement, necessarily is applicable. The fact that the commissioner approved a lump-sum payment of compensation indicates that it understood it was simply approving an agreement, notwithstanding the term “award” used therein, and was not making an award after a hearing, for in that situation he had no authority to provide for the payment in a lump sum. The trial court found:

“. . . That the award of the workmen’s compensation commissioner made on November 2, 1937, amounted to nothing more or less than the written approval by the commission of an agreed settlement entered into by and between the parties and that section 28 of the compensation act (G. S. 1935, 44-528) is not a bar to claimant’s cause of action, and that, under section 27 of the compensation act (G. S. 1935, 44r-527) claimant is entitled to relief on the ground of mutual mistake of fact.”

It is my judgment that the finding and judgment of the trial court is correct and that it should be affirmed.

Smith and Allen, JJ., concur in the dissenting opinion of Mr. Justice Harvey.