Infelt v. Horen ( 1959 )

On Motion for Rehearing.

MR. JUSTICE ANGSTMAN:

The Employers Mutual Liability Insurance Company has filed a petition for rehearing herein in which it is asserted that the court’s opinion overlooks section 92-712 which reads:

“Should a further accident occur to a workman who is already receiving compensation hereunder, or who has been previously the recipient of a payment or payments under this act, his further compensation shall be adjusted according to the other provisions of this act, and with regard to his past receipt of compensation. ’ ’

As pointed out in the opinion, claimant’s first industrial accident occurred on the 11th day of February, 1952, and the second one on December 20, 1954.

The Mutual Liability Insurance Company was and is liable to claimant for all compensation due him under the first accident or until the second accident occurred. It is not liable to claimant for compensation arising by reason of the second accident. If section 92-712 has any application to facts such as we have here it would affect the award for the second accident only and would not affect the liability of the Insurance Company under the first accident.

Hence, the Insurance Company is not affected by section 92-712.

The Insurance Company also asserts in its motion that the court overlooked that part of section 92-826 which reads:

“The board shall have continuing jurisdiction over all its orders, decisions, and awards, and may, at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter, or amend any such order, decision, or award made by it upon good cause appearing therefor. Provided, that the board shall not have power to rescind, alter, or amend any final settlement or award of compensation more than four (4) years after the same has been made, and provided further that the board shall not have the power to rescind, alter or amend any order approving’ a full and final compromise settlement of compensation.”

There is no basis in the record to sustain the contention that there ever was a final settlement or award in this case.

It is true that claimant signed a receipt on which was written the following:

“Do not sign this receipt unless you intend to end payments of compensation and close the ease.”

There had been no hearing with respect to any final settlement. There is nothing in the record to indicate that claimant knew what the receipt stated when he signed it.

The first part of section 92-826 gives the board continuing jurisdiction to amend its orders and awards and a claimant does not surrender his right to seek such modification by merely signing a receipt in which there is language suggesting that the intention is to close the case when in fact there had been no discussion or hearing- purporting to give the award the semblance of finality.

The motion for rehearing is denied.

MR. JUSTICES BOTTOMRY and ADAIR concur.