Virden v. Smith , 46 Nev. 208 ( 1922 )

By the Court,

Ducker, J.:

On the 20th day of July, 1918, the respondent, whose employers had accepted the provisions of an act of the legislature of this state known as the workmen’s compensation act (Stats. 1911, c. 111), sustained injuries in the course of his employment, which resulted in permanent and complete paralysis of both legs, from the hips downwards. On that date respondent’s employees notified the Nevada Industrial Commission of the accident and resulting injuries, which made an award to respondent of $50 per month, pursuant to the rate then fixed by said act for such cases. The provision under which the rate was fixed read as follows:

“Permanent total disability: In cases of total disability adjudged to be permanent, compensation of fifty per cent (50%) of the average monthly wage, but not less than twenty dollars ($20) per month nor more than fifty dollars ($50) per month during the life of the injured person.” Stats. 1917, p. 443.

This compensation has ever since been paid. On March 22, 1921, the act was amended so that this provision reads as follows:

“Permanent total disability: In cases of total disability adjudged to be permanent, compensation of sixty (60%) per cent of the average monthly wage, but not less than thirty ($30) dollars per month nor more than sixty ($60) dollars per month during the life of the injured person; provided, in cases of permanent total disability, if the character of the injury is such as to render the workman so physically helpless as to require the services of a constant attendant, an additional allowance of thirty ($30) dollars per month may be made so long as such requirements shall continue, but such increase shall not obtain or be operative while the workman is receiving hospital care under or pursuant to the provisions of section 23 of this act.” Stats. 1921, p. 239.

On or about the 9th day of July, 1921, the respondent, applied to the Nevada Industrial Commission for the allowance of an additional $30 per month pursuant to the nurse-allowance provision of the amendment. The application was denied by the commission. An action, was instituted by the respondent against the commission in the district court which resulted in a judgment in favor of the former — that he recover from the latter the sum of $30 per month from and after the 28th day of March, 1921, and for so long as his condition required for him the attendance and services of a practical nurse. Hence this appeal by the officers constituting the commission.

There is no controversy as to the facts, but merely as to the application of the amendment and its validity, if intended by the legislature to act retroactively. Appellants contend that it is prospective in its operation, and, further, that if it is retroactive in its operation, it impairs the obligation of a vested agreement entered into as an award pursuant to statute, and therefore violates constitutional inhibitions. Although the workmen’s compensation act is in derogation of the common law, it is remedial legislation, and should be liberally construed to effectuate its purpose. This class of legislation, however, constitutes no exception to the general rule. It is deemed prospective and not retroactive in its operation. The rule of construction in this regard is of strict application. Milliken v. Sloat, 1 Nev. 573. It was recently applied by this court in Wildes v. State, 43 Nev. 388, 187 Pac. 1002:

“There is always a presumption,” said the court in that opinion, quoting approvingly from United States v. Heth, 3 Cranch, 399, “that statutes are intended to operate prospectively only, and words ought not to have a retroactive operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute. If all the language of a statute can be satisfied by giving it prospective action only, that construction will be given it.”

This declaration of the rule is in harmony with established principle, and, keeping it in mind, we can find nothing in the language of the amendment, considered singly or in connection with the wording of the entire act, to indicate any legislative intent to give the amendment retroactive effect.

Respondent concedes that the amendment is prospective, but contends that the action of the lower court in awarding him a nurse allowance of $30 per month from the date of its enactment gives the amendment no retroactive operation. We think it does. Respondent’s injuries were sustained prior to its enactment, and his right to compensation was determined in accordance with the statute then in force. The amendment empowered the commission to award a larger compensation during the life of an injured person, and prevented it from making the award as low as the minimum fixed by the statute amended. In addition the nurse allowance, which respondent claims, was provided. Clearly these changes are not formal, but substantial. They pertain to no matters of procedure. They concern the right and not the remedy. If the amendatory statute be construed so as to entitle the respondent to recover under its nurse-allowance provision from the date of enactment, the effect of the statute is to enlarge the right he had at the time he received the inj uries.

The case of Talbot v. Industrial Insurance Commission, 108 Wash. 231, 183 Pac. 84, is cited in respondent’s brief, and declared to be conclusive of the inquiry on this appeal. It was also referred to by the trial court in its written decision, and considered directly in point. In Talbot v. Industrial Insurance Commission the facts were substantially the same as in the case under consideration. The injured person was totally disabled, and at all times since his injury had been so physically helpless as to require the services of a constant attendant. The commission awarded him compensation under the existing law, and refused to award him an increased monthly allowance under an amendment similar to the one in question. The trial court reversed the commission’s refusal to award the increased allowance claimed, and held that the injured person was entitled thereto, but only from the date of the going into effect of the amendment. The supreme court held that this ruling did not give the amendment a retroactive effect contrary to the intention of the legislature. The case is squarely in point, and supports respondent’s position, but we are not able to reach the same conclusion in the case before us. No reasoning as to the construction placed upon the amendment, or statement of the rule employed by which the legislative intent was ascertained, appears in the opinion in Talbot v. Industrial Insurance Commission. It is also to be observed that upon a rehearing in that case, only a majority of the court adhered to the original opinion. 108 Wash. 234, 187 Pac. 410. Our construction of the amendment before us leads us to an opposite conclusion.

As we are of the opinion the judgment of the lower court gives the amendment a retroactive effect contrary to legislative intent, it must be reversed.

It is so ordered.