Lappinen v. Union Ore Co.

¹ Reported in 29 N.W.2d 8. Certiorari to the industrial commission to review an award of further compensation for permanent partial disability resulting from an injury for which compensation for temporary total disability had been paid and a final receipt given and filed with the commission.

The questions for decision are: (1) Whether, where eight days after an employe sustained an accidental injury the employer filed with the commission a written report of the accident and about two months after the accident occurred the employer filed with the commission a final receipt for compensation paid to the employe for temporary total disability caused by the injury, a proceeding commenced about 11 years after the filing of the receipt to recover further compensation for permanent partial disability caused by the injury is barred by § 176.18(1), requiring a proceeding by an employe to recover compensation to be brought within two years after the employer has made written report of the injury to the commission and not more than six years after the date of the accident; (2) whether the commission was justified in awarding compensation for permanent partial disability of the employe's left arm as a whole, where the proceeding is brought to recover compensation for permanent partial loss of use of the left hand including wrist movement, and there was no evidence taken at the hearing before the referee as to the nature and extent of the injury, except the reports of two physicians which the parties stipulated would be used for the purpose of "deciding" employe's disability, one of which showed that the disability was limited to the left hand and wrist movement and the other that it was limited to the left hand and lower forearm, but employe, as part of his testimony received for the purpose of giving a brief history of the injury, gave a demonstration before the referee of his hand and arm movements, the details of which are not shown in the record; (3) whether interest should be allowed upon compensation awarded where employe did not proceed to recover it for approximately 11 years after the execution and filing of the final receipt; and (4) whether the employer is liable for a penalty under § 176.31, subd. 2, for interposing a frivolous defense presenting no real controversy, where he prevails in this court.

The facts giving rise to these questions are that on May 8, 1934, the employe, while employed as a mining foreman, sustained a fracture of the upper third of his left arm between the wrist and the elbow; that he received hospital and medical treatment for his injuries; that he was disabled until June 24, 1934, a period of six weeks and four days; that the employer paid him $134.56 compensation; that he then returned to his work as a mining foreman; and that on July 6, 1934, he executed a final receipt on a form prepared by the commission. The employer filed with the commission on May 16, 1934, a report of the accident, and on July 9, 1934, it filed the final receipt and a certificate by a physician concerning employe's injuries. The final receipt was processed by the commission. There was correspondence between employe and the commission and an examination of employe by a neutral physician, who found that there was a good union of the fracture; that employe had a useful left arm; and that there was no limitation of either elbow or wrist movement. Thereupon, the commission notified the employe that the report filed on July 9, 1934, to the effect that there was no permanent disability, "apparently is confirmed."

In the report of the accident and the physician's certificate filed with the final receipt, the injury in question was described as a fracture of the upper third of the left forearm (the radius). In the claim petition for further compensation for permanent partial disability, the injury is so described and the disability as "30 percent loss of use of left hand including wrist movements."

The case was heard by a referee. No oral medical testimony was taken. In lieu thereof, the parties stipulated that medical reports prepared by their respective physicians, Dr. J. Arnold Malmstrom for the employe and Dr. Robert L. Bowen for the employer, "will be used for the cause [purpose] of deciding what medical disability, if any, the employe has." The reports were substantially the same, except as to the extent of the resulting disability. Dr. Malmstrom reported that employe complained of pain in the neck, shoulder, and elbow regions radiating down into the hand; that he had a fracture of the left radius; that he had a slightly smaller than normal measurement of the muscle in the upper left arm; that his shoulder and elbow movements were normal; and that he had a definite bowing of the left forearm. His conclusion was that employe sustained a "possible loss" of approximately 35 to 40 percent of the use of the left hand and 10 to 15 percent loss of use of the lower left forearm, or a total permanent loss of use of both of approximately 25 to 30 percent. Dr. Bowen found that employe had sustained some loss of grip (of the hand) and limitation of motion of the left forearm and estimated "the disability at approximately 25 percent of the hand and wrist." There was no evidence showing disability to the left arm as a whole.

At the hearing before the referee, employe was permitted to testify, over the employer's objection, for the purpose of giving a brief history of his injury as to the facts concerning the accident and his injury in which he referred to the injury as one to his left arm or arm. He was permitted to demonstrate to the referee "how much" he could move his hand, how much he could twist his arm, and how he could raise his hand to his head. These movements were accompanied by such remarks as "I can do that much, see," "that much," and "like that"; but the record contains no other statement of what the demonstration showed.

The position taken in the dissenting opinion by Mr. Justice Thomas Gallagher that the question whether employe's whole arm was injured was litigated by consent is untenable. When employe in answering a question was about to state facts concerning his injuries, the following occurred:

"By Mr. Gillette: The injury is admitted here.

"By Mr. Bouschor: We'll just let him give a brief history ofthe injury." (Italics supplied.)

It is plain that Mr. Gillette intended to object to Mr. Bouschor's going into any matters covered by the stipulation; that Mr. Bouschor not only so understood, but realized that Mr. Gillette's intended objection was a valid one; and that, to obviate further objection, Mr. Bouschor by his statement that he intended only to elicit a brief history of the injury not only intended to assure Mr. Gillette that he did not intend to offer any evidence subject to the latter's objection, but that any evidence that might be given would be entirely consistent with the stipulation and not subject to the objection.

The referee found that employe had sustained a 25 percent permanent and partial disability of the left arm, and concluded "that the employer herein shall pay 50 weeks of compensation at $20.00 a week — being the sum of $1,000.00 by reason of a 25% permanent and partial disability of the left arm, together with interest to March 1, 1946 in a sum of $674.42 and further interest for the period following March 1, 1946, until all compensation due in this matter has been fully paid." (Italics supplied.) The employer appealed to the commission from the referee's decision on questions of law and fact. The case was heard by the commission upon the record made before the referee. No reference was made in the commission's decision to employe's demonstration of his injuries at the hearing before the referee. Adopting the reports of the physicians introduced by stipulation of the parties as a basis for determining the nature and extent of permanent partial disability, the commission affirmed the referee's decision both as to his findings concerning the nature and extent of the disability and the allowance of interest.

1. Under § 176.18(1), a proceeding by an employe or his dependents to recover compensation is barred, unless commenced within two years after the employer has filed with the commission a written report of the accident and within six years after the date of the accident. Our decisions hold that the workmen's compensation act contemplates that there shall be only one proceeding by an employe or his dependents to recover compensation; that the proceeding must be commenced within the time limited by the statute; that at any time before certiorari to review the award has been issued by this court or the award has been reduced to judgment the commission may under § 176.60 set aside an "award" for cause and grant a new hearing; that the filing with the commission of a final receipt showing voluntary payment in full of compensation by the employer constitutes a proceeding to have the commission determine whether the settlement evidenced by the final receipt conforms to the act; that, where the commission does not disapprove the settlement and payment, the transaction is equivalent to an express award by the commission discharged by payment in full; that the commission for cause may set aside such a settlement and grant a new hearing in the exercise of its power so to do in the case of an award — only an "award," not some other sort of transaction, may be set aside under the statute; that the commission's jurisdiction of a proceeding to recover compensation and of any award made by it continues as long as there is any liability for compensation; that a proceeding to recover further compensation in cases where there has been an express award or the filing of a final receipt after voluntary payment constitutes a reopening and continuation of the original proceeding; and that the time limited in § 176.18(1) for bringing a proceeding to recover compensation refers to the original proceeding and not to a subsequent one reopening and continuing the original proceeding for the purpose of recovering further compensation. Rasmussen v. City of St. Paul,215 Minn. 458, 10 N.W.2d 419; Nyberg v. Little Falls Black Granite Co. 192 Minn. 404, 256 N.W. 732; Kummer v. Mutual Auto Co. 185 Minn. 515, 241 N.W. 681.² The filing of a report of the accident or some paper other than a final receipt after voluntary payment of compensation does not constitute the institution of a proceeding. Rasmussen v. City of St. Paul,supra. The cases of Mattson v. Oliver I. Min. Co. 201 Minn. 35,275 N.W. 403; Pease v. Minnesota Steel Co. 196 Minn. 552,265 N.W. 427, 266 N.W. 854; and Lunzer v. W. F. Buth Co.195 Minn. 29, 261 N.W. 477, relied on by relator, and Mohrlant v. Lampland Lbr. Co. 222 Minn. 58, 23 N.W.2d 172, involved the filing of a report of accident or some paper other than a final receipt, and for that reason they are not in point. Here, because the final receipt was filed approximately two months after the accident, the original proceeding was commenced within the time limited by the statute. The instant proceeding to recover further compensation for permanent partial disability, although commenced about 11 years after the filing of the final receipt, constituted a reopening or continuation of the original proceeding. Because the bar of the statute is inapplicable to a proceeding to reopen and continue an original proceeding, the instant proceeding was not barred. Because the obligation of the employer to pay compensation continued, it was permissible to reopen and continue the original proceeding to enforce that obligation.

2. The dispute as to whether the employe was entitled to compensation for disability of the whole arm or of the hand and wrist movement or the hand and lower forearm is to be determined by the application of the statute to the facts of the case. The compensation act contains a schedule of specific injuries for which it provides specific awards of compensation. Section 176.11, subd. 3(41), provides that in case of permanent partial disability due to injury to a member, not otherwise compensated in the schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss of the respective member which the extent of injury to the member bears to its total loss. The schedule contained in § 176.11, subd. 3, provides for an award of 66 2/3 percent of the daily wage at time of injury as follows:

(12) For loss of a hand not including wrist movement during 150 weeks;

(13) For loss of a hand including wrist movement during 175 weeks;

(14) For loss of an arm during 200 weeks;

"(15) Amputation of the arm below the elbow is considered the loss of a hand, including wrist movement, if enough of the forearm remains to permit the use of an effective artificial member, otherwise it is considered the loss of an arm;"

The findings that employe's percentage of disability is 25 percent and that he was entitled to $20 per week are not questioned here. If the disability was limited to the hand and wrist movement or to the hand and lower forearm, he was entitled to an award of $875 compensation, and if the disability affected the whole arm he was entitled to $1,000. While the dispute as to the amount of compensation involves only $125, that is no reason why it should not be decided correctly.

Where a workmen's compensation act contains a schedule of specific injuries for which specific awards of compensation are provided, the award of compensation for a specific injury included in the schedule must be the particular one therein set forth. The schedule fixes specific compensation for specific injuries, and the commission lacks discretion to make another or different award. Sheldon v. Gopher Granite Co. 174 Minn. 551,219 N.W. 867; Chiovitte v. Zenith Furnace Co. 148 Minn. 277,181 N.W. 643; Western Condensing Co. v. Industrial Comm.234 Wis. 452, 291 N.W. 339; 71 C. J., Workmen's Compensation Acts, § 547. An injury is not specific within the meaning of the schedule unless it relates solely to the injured member, and if an injury to a specific member also causes other injuries, compensation is not limited to that for the specific member, but is the compensation provided in the act for the greater injury. Olson v. Griffin Wheel Co.218 Minn. 48, 15 N.W.2d 511, 156 A.L.R. 1338; State ex rel. Albert Lea Packing Co. Inc. v. District Court, 146 Minn. 283,178 N.W. 594; State ex rel. The Broderick Co. v. District Court, 144 Minn. 198, 174 N.W. 826. In State ex rel. Kennedy v. District Court, 129 Minn. 91, 93, 151 N.W. 530, 531, we had occasion to apply these rules in a case somewhat similar to the instant one. We there held that if the disability related to the whole arm compensation should be awarded for such disability; and that if it related only to the hand and wrist movement it should be limited to the latter, saying:

"* * * If there were no injuries except to the hand and forearm, we think the court should have awarded compensation based upon a percentage of total disability to the hand."

We held further that whether the injury was one or the other was a fact question.

3. It is too well settled to require citation of authority that the workmen's compensation act should be liberally construed so as to afford coverage of all cases reasonably within its purview. The provisions of § 176.54, to the effect that the commission shall not be bound by common-law or statutory rules of evidence or by technical or formal rules of procedure except as provided in the act, but that "All findings of fact shall be based only upon competent evidence" (italics supplied), sweep away procedural technicalities, to the end that claimants may be afforded the protection intended by the act (Matter of Ziegler v. P. Cassidy's Sons, 220 N.Y. 98,115 N.E. 471, Ann. Cas. 1917E, 248); but they do not dispense with proof of the employe's claim. On the contrary, they impose upon him the imperative duty of proving his case by "competent evidence." Bliss v. Swift Co. 189 Minn. 210, 248 N.W. 754; Manley v. Harvey Lbr. Co. 175 Minn. 489, 221 N.W. 913.³ To hold otherwise would amount to taking money from one person and giving it to another without any legal basis for so doing. Matter of Hansen v. Turner Const. Co. 224 N.Y. 331, 120 N.E. 693.

4. While an employe is required to prove his claim by competent evidence, an affirmative duty rests upon the commission to see to it that an award or settlement conforms to the act by affording to the employe the maximum coverage intended to be given him by the act. In so doing, the commission may by disregarding procedural technicalities adapt the relief to the facts of the particular case, but it must always act fairly and judicially. Where a claim is litigated upon a claimed set of facts and the proofs fail to establish those facts, with the consequence that the employe would not be entitled to compensation under his theory of the case, but the proofs do establish a different situation entitling the employe to compensation or to greater compensation than that claimed by him, it is the duty of the commission to order litigation of the issues arising from the facts thus developed at the hearing and, where necessary, to order a continuance in order to afford the parties opportunity to prepare for such litigation, and, if the proofs should sustain a recovery or a greater one than claimed, to make an award accordingly. For example, in Kallgren v. C. W. Lunquist Co. 172 Minn. 489, 493, 216 N.W. 241, 242, where the claim was based upon disability caused by sunstroke and the proofs failed to sustain such claim, but did show disability resulting from apoplexy caused by the lifting of a heavy beam by the employe, who was then suffering from arteriosclerosis and high blood pressure, we reversed the decision of the commission denying an award of compensation and remanded the case for the purpose of having the commission determine whether the facts would sustain an award on the last-mentioned ground, with directions "to make a definite finding thereon from the record and such additional evidence as each of the parties may wish to offer in reference thereto." So here, if there was a basis for an award of compensation for disability of the arm as a whole, it was the duty of the commission to make such an award, but it could not do so where, as here, the litigation had proceeded upon the unquestioned supposition that the disability was to the hand and wrist movement, or to the hand and lower forearm, without affording the employer opportunity to meet the issue whether the disability was in fact one affecting the whole arm.

5. The commission is the finder of the facts in all cases coming before it on appeal from a referee's decision, regardless of whether the appeal is heard upon the record made before the referee or upon such record and additional evidence taken by the commission. Nelson v. Creamery Package Mfg. Co.215 Minn. 25, 9 N.W.2d 320; Barlau v. Minneapolis-Moline P. I. Co. 214 Minn. 564, 9 N.W.2d 6; Segerstrom v. Nelson, Mullen Nelson, Inc. 198 Minn. 298, 269 N.W. 641; Olson v. Carlton, 178 Minn. 34, 225 N.W. 921; Hogan v. Twin City Amusement Trust Estate, 155 Minn. 199,193 N.W. 122. Here, as has been mentioned, the commission found the facts upon the record made before the referee without taking additional evidence.

6. On this record, a finding of disability of the whole arm rather than of the hand and wrist movement or of the hand and lower forearm was not permissible, for the reasons (a) that the evidence to be considered under the stipulation showed disability only of the hand and wrist movement or of the hand and forearm; and (b) that the record fails to disclose any disability to the arm as a whole.

(a) When at the opening of the hearing before the referee the parties "agreed" that the statements of the doctors "will be used for the cause [purpose] of deciding what medical disability, if any, the employe has," they in effect stipulated that the statements constituted the evidence to be considered in determining the nature and extent of the employe's disability. Holmberg v. Southern Minnesota J. S. L. Bank (D. C.) 10 F. Supp. 795 (Nordbye, J.), (appraiser's figures received to show value of lands); Flanagan v. Charles E. Green Son, 121 N.J.L. 327, 329, 2 A.2d 180, 181 (a signed statement by an injured employe, which it was stipulated "both parties are submitting * * * to your honor to pass upon the factual question" whether an accidental injury arose out of and in the course of the employe's employment); Lowell Co-op. Bank v. Sheridan, 284 Mass. 594, 598, 186 N.E. 636, 638,91 A.L.R. 1176 (stipulation that plaintiff's treasurer, if produced as a witness, would testify to all facts alleged in the bill not admitted by the answer, held "in substance an agreement as to the evidence to be considered by the court").

The parties may stipulate as to what evidence shall be considered by the trier of fact. G. N. Ry. Co. v. Becher-Barrett-Lockerby Co. 200 Minn. 258, 274 N.W. 522; Shaw v. Henderson, 7 Minn. 386 (480); Holmberg v. Southern Minnesota J. S. L. Bank and Flanagan v. Charles E. Green Son,supra; Frati v. Jannini, 226 Mass. 430, 115 N.E. 746. Courts encourage the use of stipulations concerning matters of procedure and proof, because they facilitate litigation by lessening labor and expense. Amundson v. Cloverleaf Memorial Park Assn. 221 Minn. 353, 22 N.W.2d 170; National Council v. Scheiber, 141 Minn. 41, 169 N.W. 272.

A stipulation as to what evidence shall be considered by the trier of fact in deciding a particular question excludes the consideration of other evidence. Shaw v. Henderson and Holmberg v. Southern Minnesota J. S. L. Bank, supra. The plain purpose of such a stipulation is to state the evidence without producing it in the ordinary way. Where there is no intention to circumscribe the trier of fact, the common practice is simply to read the stipulated evidence into the record. But where, in addition, as here, the parties agree that the stipulated evidence is to be used for the purpose of deciding a particular issue of fact, an intention is manifested that the decision shall be based exclusively upon the stipulated evidence. Otherwise, the stipulated evidence would not be used for such purpose. Unless stipulations are enforced, they are apt to prove a trap for even the most wary and circumspect, and that is precisely what would be the effect of the stipulation here if the commission could disregard it in deciding the question of the nature and extent of employe's disability.

As long as a stipulation remains in effect it is binding not only on the parties, but on both the trial and appellate courts. Amundson v. Cloverleaf Memorial Park Assn. and Shaw v. Henderson, supra; Bingham v. Board of Supervisors, 6 Minn. 82 (136); H. Hackfeld Co. v. United States, 197 U.S. 442, 25 S. Ct. 456,49 L. ed. 826; City of Chicago v. Drexel, 141 Ill. 89, 30 N.E. 774; Lewis v. Lambros, 58 Mont. 555, 194 P. 152. Because such a stipulation excludes consideration of other evidence, other evidence may not be considered, even though it may find its way into the record, except where it clearly appears that the parties have abandoned the stipulation. Shaw v. Henderson,supra; Paige v. Willet, 38 N.Y. 28. Likewise, the stipulation may not be contradicted by other evidence. City of Chicago v. Drexel, supra; LeBarron v. Harvard, 129 Neb. 460, 262 N.W. 26,100 A.L.R. 767.

The rules governing stipulations apply in workmen's compensation cases the same as in others. Worwa v. Minneapolis St. Ry. Co. 192 Minn. 77, 255 N.W. 250. A stipulation, as long as it is recognized as being in effect, is binding on the parties and on the commission. Schreiber v. Rickert,114 Ind. App. 55, 50 N.E.2d 879; General Const. Co. v. Industrial Comm. 314 Ill. 58, 145 N.E. 90; Montgomery Ward Co. v. Industrial Comm. 304 Ill. 576, 136 N.E. 796; Midwest Rig Bldg. Co. v. Bradshaw, 184 Okla. 479, 88 P.2d 340; Western Condensing Co. v. Industrial Comm. 234 Wis. 452, 291 N.W. 339,supra.

True, the commission may for cause set aside a stipulation. Worwa v. Minneapolis St. Ry. Co. supra. In certain cases it is the duty of the commission to do so, as where it appears that the effect of the stipulation is to deprive the employe of compensation to which he is entitled under the act. While the commission has undoubted power to reject a stipulation of the parties, that fact does not affect the rule that a stipulation is binding until set aside. Princeton Min. Co. v. Earley,114 Ind. App. 343, 51 N.E.2d 382. Where the commission decides to disregard a stipulation, it should expressly set it aside, make that fact known to the parties, and adapt its procedure to the change in the situation created by its setting aside of the stipulation, to the end that the litigation may proceed in the light of the changed situation and that the parties may be afforded an opportunity to meet new issues, if any, created by the change. Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56,159 P. 150. In Princeton Min. Co. v. Earley, supra, where the commission followed the procedure mentioned, the court in pointing out the correct procedure said (114 Ind. App. 346, 51 N.E. [2d] 383):

"The authority to reject the whole of an agreement must logically include the authority to reject a part [a stipulation as to fact]. * * * This does not affect the rule that a stipulation is binding unless withdrawn or set aside. Of course the board cannot permit a stipulation to stand and then find contrary to it. By permitting it to stand the board in effect approves it. If it is to be rejected the parties are entitled to know it and to have an opportunity to marshall their evidence on the point."

Consequently, the stipulation here was binding on the parties and on the commission. The commission did not reject it or set it aside. In affirming the referee's decision, the commission bottomed its decision on the stipulation, thereby showing that it deemed the stipulation to be in effect. But it misconstrued the effect of the stipulation. While the evidence to be considered under the stipulation in determining the nature and extent of the disability showed, according to one doctor, a 25 to 30 percent disability of the hand and lower forearm and according to the other approximately 25 percent disability of the hand and wrist movement, the commission found a 25 percent disability of the whole arm. Thereby, it found disability in excess of that for which there was any basis in the evidence which it was entitled to consider. Cases like Kruchowski v. Swift Co. 201 Minn. 557, 277 N.W. 15, and Gurtin v. Overland-Knight Co. 179 Minn. 38, 228 N.W. 169, where we held that the commission was not bound by medical testimony in determining the extent of disability, are not in point, because in those cases there was evidence other than that of the medical testimony to sustain the finding. Here there is none. The stipulation binds the commission to consider only the evidence which shows a disability of the hand and wrist movement or the hand and lower forearm. It cannot predicate a finding on conjecture. Susnik v. Oliver I. Min. Co. 205 Minn. 325,286 N.W. 249.

It does not appear that either the commission or the referee intended to set aside the stipulation, but the fact is that their decisions entirely ignored the legal effect of it. If the intention was to set aside the stipulation, it should have been done by express order. If the commission was of the view that the employe might be entitled to compensation for disability of the whole arm, it should have so informed the parties and permitted them to litigate the issue as to whether that was the fact. It could not decide the issue without affording the parties such opportunity.

(b) Aside from any effect the stipulation might have in circumscribing the commission's power to find the facts as to the nature and extent of employe's disability,⁴ employe's demonstration of his injuries before the referee was not part of the record and therefore could not be considered by the commission. As has been pointed out, the commission made its own findings upon the record made before the referee without taking additional evidence. The commission did not see the demonstration. It had no better opportunity than we have of knowing of what the demonstration consisted or what it disclosed. See, Rikstad v. Dept. of Labor and Industries,180 Wash. 591, 41 P.2d 391. The alleged demonstration should not have been considered by the commission, because it was not part of the record. It plainly was the intention of the workmen's compensation act that all evidence considered by the commission in finding the facts should be included in the record, not only for the purpose of enabling parties properly to litigate fact questions before the commission, but also that there might be judicial review of the commission's decisions with respect to such questions. Matter of Carroll v. Knickerbocker Ice Co.218 N.Y. 435, 113 N.E. 507, Ann. Cas. 1918B, 540; Spencer v. Industrial Comm. 81 Utah 511, 20 P.2d 618; Id. 87 Utah 336,358, 40 P.2d 188, 48 P.2d 1120; Sharp v. Bowen, 87 Utah 327,48 P.2d 905. Personal knowledge acquired by members of the commission or one of its members by inspection in the course of a hearing or otherwise not made part of the record must be excluded. Matter of Schemerhorn v. General Elec. Co. 195 A.D. 670,186 N Y S. 835 (holding that information acquired by a deputy commissioner in the course of a hearing by examining an injured employe, not made part of the record, could not be considered in determining the extent of a hand injury).

The commission's finding of the facts on appeal upon the record made before the referee is analogous in this respect to findings made by the appellate court under the old chancery practice where the case was tried de novo upon the record. In such cases, evidence not made part of the record could not be considered, even though such evidence was before the trial judge. Blease v. Garlington, 92 U.S. (Otto) 1, 23 L. ed. 521; Gallion v. M'Caslin, 1 Blackf. (Ind.) (2 ed.) 103, 12 Am. D. 208. In Conn v. Penn, 18 U.S. (Wheat.) 424, 5 L. ed. 125, certain parol evidence not made part of the record was not considered by the appellate court. In the opinion by Mr. Chief Justice Marshall, it was held that all the evidence considered by the trial court should be brought into the record and that evidence heard by the trial judge but not brought into the record could not be considered by the appellate court.

The rule is different on an appeal where the appellate tribunal, as the commission did here, tries and decides the case upon the record made before a trial tribunal, from what it is on a writ of error or so-called appeal which is in the nature of a writ of error. Under the former, because the appellate tribunal makes its own findings, only the record can be considered. The plaintiff has the burden of proof in the appellate court the same as in the trial tribunal. Devore v. Adams, 68 Iowa 385, 27 N.W. 267; 5 C.J.S., Appeal and Error, §§ 1529, 1531. The usual presumptions in favor of a finding of the trial tribunal do not obtain. Because the appellate court makes its own findings upon the record the same as if none had been made by the trial court, there are in fact no findings to be bolstered by presumptions. Dier v. Dier, 141 Neb. 685,4 N.W.2d 731.

Where the review is by writ of error or by an appeal governed by the same principles, the presumption is that the evidence supports the findings, even though the evidence is incompletely preserved in the record, as in the case of the demonstration here. Presumption supplies in such a case what the record fails to show. Donnelly v. Lehigh Nav. Elec. Co. 258 Pa. 580,102 A. 219; 5 C.J.S., Appeal and Error, § 1562. No such presumption can be indulged here, for the reason that a case is removed from a referee to the commission not by writ of error, but by appeal, and the commission in performing its functions as an appellate tribunal is not governed by the principles applicable to review by writ of error. The commission's function, as has been pointed out, is not to decide whether the referee has committed error, but to decide the entire case de novo upon the evidence before it. So functioning, it cannot supply by presumption the existence of facts not shown by the evidence. It could not consider the alleged demonstration, because there was no evidence in the record concerning it, and the commission neither saw nor heard it.

7. Interest for approximately 11 years subsequent to the filing of the final receipt until the commencement of this proceeding to recover further compensation for the permanent partial disability should not have been allowed, for the reason that there was neither contractual obligation to pay it nor default in paying it when due. There is no pretense that there was any agreement by the employer to pay interest. The workmen's compensation act contains no provision requiring interest to be paid on compensation payments. Bourdeaux v. Gilbert Motor Co. 220 Minn. 538, 20 N.W.2d 393. Where interest is allowed upon workmen's compensation, it is awardedas damages for default consisting of failure to make payment when due the same as in other cases where there is neither an express promise to pay nor a statutory duty to do so. Bourdeaux v. Gilbert Motor Co. supra; Brown. v. City of Pipestone,

186 Minn. 540, 245 N.W. 145. See, Royal Ind. Co. v. United States,313 U.S. 289, 61 S. Ct. 995, 85 L. ed. 1361.

It logically follows that there can be no liability for interest where there is a liability to pay money, but no express promise to pay interest thereon, no statutory obligation to do so, and no default consisting of failure to pay the money when due. Lund v. Larsen, 222 Minn. 438,24 N.W.2d 827 (agreement to pay money on a certain day, but none to pay interest thereon prior thereto); County of Redwood v. Winona St. P. Land Co. 40 Minn. 512, 41 N.W. 465,42 N.W. 473, affirmed, 159 U.S. 526, 16 S. Ct. 83, 40 L. ed. 247 (liability to pay taxes on land omitted during certain years, where there was no default); Sibley v. County of Pine, 31 Minn. 201,17 N.W. 337 (money held under mistake of fact — no liability for interest prior to a demand); Ratner v. Hill,270 Mass. 249, 170 N.E. 69.

Where the amount of a liability has not been ascertained, there is no liability for interest thereon prior to the time of its ascertainment. County of Redwood v. Winona St. P. Land Co. supra⁵; Brainerd v. Champlain Transp. Co. 29 Vt. 154.

The employer here was not in default, because through inaction of the employe during the more than 11 years in question the employer's liability, including the amount and extent thereof, had not been established and could not have been ascertained by a computation according to any known standards. It seems rather clear that the workmen's compensation act provides for liability on the part of the employer to pay compensation beginning one week after the date of injury where the disability is for less than four weeks and from the date of injury where the disability is four weeks or longer (§ 176.14), and that the liability terminates, subject to right of review under the act and rehearing under § 176.60, when the amount awarded has been paid in full (§ 176.34). Two methods, having the same legal force and effect, are provided in § 176.34 for terminating an employer's liability for compensation, viz.: (1) The filing of a final receipt showing such payment, and (2) an order of the commission terminating the liability granted after notice and hearing in cases where the employe or his dependents refuse to execute a final receipt. The statute declares that such an order shall operate to "relieve" the employer "from any further liability for payment of compensation," subject to such right of review and rehearing. That an award and the situation created by the filing of a final receipt which has not been disapproved stand upon the same basis is evident from our decisions holding that both the award and the settlement evidenced by the filing of the final receipt may be set aside for cause and a new hearing granted. Tuomi v. General Logging Co. 196 Minn. 617,265 N.W. 837 (an award); Nyberg v. Little Falls Black Granite Co.192 Minn. 404, 256 N.W. 732, supra (filing of a final receipt); Hawkinson v. Mirau, 196 Minn. 120, 264 N.W. 438, 265 N.W. 346 (where there was no award and no final receipt, but compensation was voluntarily paid and a proceeding was brought to terminate liability for further payments). Setting aside an award or a settlement evidenced by a final receipt and granting a new hearing lies in the discretion of the commission, and where the commission denies an application by an employe for such relief the employer cannot be held liable for further compensation. Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22. Hence, not only the further liability in any case, but the extent and amount of it, is contingent on an award being made by the commission in the exercise of its discretion to grant a rehearing.

Not only is it discretionary to set aside an award or settlement evidenced by a final receipt, but so is it as to the making of a new award upon rehearing, because it involves deciding by forming an estimate of the percentage of the disability sustained by the employe. This can be, and as a matter of practice is, done by taking evidence and considering it in substantially the same manner as is done in a personal injury case in awarding damages for physical disability sustained as a consequence of defendant's wrong. Interest is never awarded on such unliquidated liabilities. Grand Forks Lbr. Co. v. McClure Logging Co. 103 Minn. 471, 115 N.W. 406; Swanson v. Andrus, 83 Minn. 505, 86 N.W. 465. In the Swanson case we said (83 Minn. 510, 86 N.W. 467):

"* * * On the other hand, interest has not been allowed where the damages claimed were not only unliquidated, but could not be ascertained by reference to any generally recognized standard, or were, or any part of them, prospective or contingent, or the amount thereof depended in whole or in part upon the discretion of the jury."

For the same reasons, no interest should be allowed here.

The principles just stated have been applied by other courts in cases like the instant one upon the theory that a creditor is not entitled to interest where he fails to have the amount of the liability ascertained and the liability is contingent and not computable by established standards by what amounts to arithmetical operation. Bushing v. Iowa Ry. Light Co. 208 Iowa 1010, 226 N.W. 719 (interest not allowed during delay of about ten years); Angelo v. Keystone State Const. Co. 134 Pa. Super. 255, 3 A.2d 946 (delay of five years). The Bushing case is particularly persuasive, because it was decided by the Iowa court, whose decision in Nester v. H. Korn Baking Co. 194 Iowa 1270,190 N.W. 949, is the basis for our rule announced in Brown v. City of Pipestone, 186 Minn. 540, 245 N.W. 145, supra, and because it points out the distinction between a case where interest is allowed for the employer's default and where it is denied for lack thereof.

By providing in § 176.34 that in cases where a final receipt cannot be obtained liability for payments of compensation may be terminated by the procedure therein provided, the legislature gave full recognition to and in effect adopted the rules applicable to liability for interest as against a party holding a receipt evidencing payment in full. While a receipt showing full payment is never conclusive upon the question of further liability, it does operate to relieve the holder from further liability and from interest thereon until proceedings to establish such liability have been commenced. Because the statute intends a final receipt in a workmen's compensation case to stand on the same basis as other final receipts, the rule applicable to the latter should apply to the former. The rule is illustrated by cases involving liability of a party for interest upon money retained under mistake in reliance upon a receipt. The party retaining the money may rely upon a receipt or other acquittance and does not become liable for interest until demand is made for payment of the money thus retained. Washington Ry. Elec. Co. v. Washington, B. A. Elec. R. Co.59 App. D.C. 15, 32 F.2d 406; Second and Third St. Passenger Ry. Co. v. Philadelphia, 51 Pa. 465 (cited with approval in Sibley v. County of Pine, 31 Minn. 201, 17 N.W. 337).

In the Second and Third St. Passenger Ry. Co. case, the company failed to pay in full certain taxes because of a misunderstanding of the true basis of assessment. The city treasurer gave a receipt in full for the taxes. The company was held not liable for interest upon the amount of taxes which by mistake it omitted to pay. The court said (51 Pa. 468):

"The rule seems therefore to be this, that when a mutual mistake occurs between the payer and receiver of a sum of money, by which the whole has not been paid, or too much has been received, interest is not recoverable on the sum so withheld or received, unless it has been unjustly withheld or unjustly received. The party retaining the money by mistake, may well rely on the acquittance received or given, until the injured party, makes known his claim and demands correction and payment. After such demand, if it be refused, and it turns out that there was money due which ought to have been paid, it will bear interest from demand until paid."

So it is here.

The case of Bourdeaux v. Gilbert Motor Co. 220 Minn. 538,20 N.W.2d 393, is not in point here on the question of liability for interest, because in that case, as we were careful to point out, the employe had not signed a final receipt (220 Minn. 539, 20 N.W. [2d] 394), and for that reason and the further one that the employer had failed to obtain an order under § 176.34 for termination of compensation payments the discontinuance of payments there was wrongful. Consequently, as we pointed out, the employer there was in default in failing to make payments when due. Liability there was predicated on the default. Here, the employer was guilty of no default in not making payment of compensation when due, because payments were terminated pursuant to the final receipt, and the commission did not disapprove the settlement evidenced by it. It was the proper way to proceed, under our decision in Nyberg v. Little Falls Black Granite Co. 192 Minn. 404,256 N.W. 732, supra.

Since the employer here had done all that was required of it, it was not in default, Neither the employe, the physicians called into the case, nor the commission could find, until 11 years had elapsed after the employer had fulfilled its entire duty under the act, that there remained anything further on its part to be done. What should be required of an employer? Should he be compelled to offer to pay compensation where the employe admits none is due, and where the employer, the employe, the physicians in the case, and the administrative agency charged with the enforcement of the act at the time are aware of no basis for further liability? If so, where are tenders of compensation admittedly not due to stop? Of course, law and common sense compel the conclusion that there is no default in such a case and no liability for interest.

8. In view of the fact that the employer has prevailed on this writ, this court cannot under § 176.31, subd. 2, award the employe a penalty in addition to compensation upon the ground that the defenses interposed presented no real controversy, but were merely frivolous. Bradtmiller v. Liquid Carbonic Co.173 Minn. 481, 217 N.W. 680. See discussion of liability for penalties for failure to pay taxes, where the amount of the taxes themselves had not been established, in the County of Redwood case (40 Minn. 524, 42 N.W. 477-478).

Our conclusion is that on this record the employe was entitled to an award of compensation of $875 for 25 percent permanent partial disability of his left hand and wrist movement or of his left hand and lower forearm — it makes no difference which it is — but not of the whole arm, together with interest thereon from the date of the filing of the claim petition to recover the same as further compensation, and not from the date of the final receipt. If the commission has any basis for setting aside the stipulation for "deciding" employe's disability upon the medical statements, it may do so upon notice to the parties and grant a rehearing: but so long as the stipulation remains in effect it cannot make any award not consistent with such medical statements.

Reversed and remanded with directions to proceed in accordance with opinion.

² Gustafson v. Ziesmer Vorlander, Inc. 213 Minn. 253,6 N.W.2d 452; Johnson v. Pillsbury Flour Mills Co. 203 Minn. 347,281 N.W. 290; Tuomi v. General Logging Co. 196 Minn. 617,265 N.W. 837; Hawkinson v. Mirau, 196 Minn. 120, 264 N.W. 438,265 N.W. 346. See, Nyberg v. Little Falls Black Granite Co. 8 Minn. Work. Comp. Dec. 76.

³ A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437,61 S.W.2d 1; Nash v. Solvay Process Co. (La.App.) 189 So. 493; D'Amico v. Conguista, 24 Wash. 2d 674, 167 P.2d 157.

⁴ Where there is a stipulation as to the facts, no presumption will be made on appeal as to the existence of facts necessary to support the findings. Westmoreland v. Birmingham T. S. Bank, 214 Ala. 598, 108 So. 586, 46 A.L.R. 1201; Shaughnessy v. Isenberg, 213 Mass. 159, 99 N.E. 975; 3 Am. Jur., Appeal and Error, § 937, note 17.

⁵ Nothing can be added to the exposition of the law by Mr. Justice Mitchell in this case, which reads (40 Minn. 522,42 N.W. 477):

"* * * To render a person chargeable with interest there must be a promise, express or implied, to pay it, or some default of duty on his part in not sooner paying the money. Sibley v. County of Pine, 31 Minn. 201, (17 N.W. Rep. 337.) In a case like the present there is neither. If the law required a land-owner to list his property for taxation, his failure to do so, whereby it escaped payment of the tax at the proper time, would constitute such a default of duty as would justify charging him with interest for the time during which the public was deprived of the use of the money. Or if the amount of the tax had been ascertained, so that he had an opportunity to pay it, but instead of doing so saw fit to defeat its present collection by interposing an objection on the ground of some defect or irregularity in the proceedings, and a reassessment thereby became necessary, we can see how it might be urged that he could be charged with interest during the time that the collection of the tax was postponed, for the tax-payer himself would be in a sense responsible for the delay. But where the land has been entirely omitted from the assessment-rolls the owner is not in default. He is not required to list his land. The neglect or omission is wholly that of the public officers.He has never had an opportunity to pay the tax, for the amountof it has never been ascertained. If, under such circumstances, in the absence of any default on his part, the legislature can impose interest retrospectively, there is no reason why it might not also impose certain penalties for the non-payment of the tax, for both stand, in this respect, on the same footing. Both are in the nature of damages for a default of legal duty. The only difference is that one is in its nature compensatory, while the other is punitive." (Italics supplied.)