Allen v. Mottley Const. Co

• Citation: 170 S.E. 412
• Parties: ALLEN. v. MOTTLEY CONST. CO.
• Decision Date: 27 June 1933
• Court: Supreme Court of Virginia

170 S.E. 412

ALLEN.

v.MOTTLEY CONST. CO.

Supreme Court of Appeals of Virginia.

June 27, 1933.

Certified from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Sam Allen, claimant, opposed by the Mottley Construction Company, employer, for review of award because of change in condition. On certification of question of law by the Industrial Commission.

Question answered.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

R. Dixon Powers, of Richmond, for Allen.

Davis Ratcliffe and Sinnott & May, all of Richmond, for Mottley Const. Co.

HUDGINS, Justice.

Sam Allen was injured on August 26, 1931. On November G, 1931, the Industrial Commission made an award approving an agreement between the employee and employer whereby the employee should be paid $6.05 per week during disability. Final payment was made and accepted on November 10, 1931, and the employee returned to work. On February 21, 1933, the employee filed an application to review the award on the ground that he had suffered a change in condition.

Section 47 of the Workmen's Compensation Act (Laws 1918, c. 400), with amendment adopted by the 1932 session of the General Assembly (Laws 1932, c. 89) in italics, reads:

"Upon its own motion before judicial determination or upon the application of any party in interest, on the ground of a change in condition, the industrial commission may review any award and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this act, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any monies paid but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this act."

Under the provision of subsection 61 (§ 1887), the Industrial Commission has certified to this court for determination the following question of law:

"There are two views on the construction of the present section. The employer takes the position that the section as amended is retroactive and now bars the re-opening of the claim of Sam Allen. The employee contends that the provisions of section 47 in effect at the time of his accident places no limitation on the re opening of his claim.

"The question we wish for you to determine is whether section 47 of the Workmen's Compensation Act as amended is retroactive?"

Chairman W. H. Nickels of the Industrial Commission, in the case of C. C. Rowles v. Lynchburg Tobacco Warehouse Co., Inc., etc., 15 O. I. C. 66, has rendered an opinion which so completely disposes of the contention of the complainant in this case that we adopt the following extracts therefrom:

"The original section containing the wording to the italics covered the language of the act as it was enacted on March 21. 1918; the amendment thereto, as contained in the language italicized, was approved on March 3, 1932. The General Assembly for the session of 1932 adjourned officially sine die on March 22, 1932. In conformity to section 53 of the Constitution of Virginia, the act, as amended, became law ninety days after the day of adjournment of the session of the General Assembly, which occurred on June 21, 1932. On that date the amended section as re-enacted became law.

" 'The reason for postponing the operation of statutes, as is done by this section, was that the people might be informed of their contents before they became effective. The reason for making exceptions to the rule was manifest necessity.' City of Roanoke v. Elliott et al., 123 Va. 393, 96 S. E. 819.

"For the first time * * * a limitation has been enacted to safeguard a change in condition from the many changes transpiring and their resultant indefiniteness between the date of the last payment of compensation and the date of filing of application for a hearing. The reasons for this enactment are the same as advanced in the cases of Bristol Door & Dumber Co., v. Hinkle, 157 Va. 474, 161 S. E. 902; and Wise Coal & Coke Co. v. Roberts, 157 Va. 782, 161 S. E. 911, wherein compensation was denied during the time interlapsing between the two dates.

"The period of twelve months embodied in section 47 is the same as that provided in section 25, as a limitation upon the original claim. The one starts on the date of the last payment of compensation, the other on the date of the accident. The provisions of section 47 apply to an actual change in physical condition, presupposing a compensable injury has been sustained for which payments have been made on an award based upon a formal hearing or memorandum of agreement between the parties. The provisions of section 25 apply to the original claim for compensation for injuries by accident arising out of and in the course of the employment.

" * * * Section 47 applies to an actual change in physical condition.

"It is essential that some consideration be given to the meaning of a change in condition in order to determine, with some degree of clearness, the status of the facts to which the amended language is intended to be applied:

"First. Where an employee seeks compensation for a recurrence of an injury, the changes occurring in his condition since the former hearing, on which was based the award, is all that may be shown, and it is error to show any condition existing previous to the first award. H. Schneider, 450; Cas-paris Stone Co. v. Indus. Bd. [27S 111. 77] 115 N. E. 822, 15 N. C. C. A. 390-400; B. F. Mar-ton v. Bristol Coal Corp., 12 O. I. C. 100; Dan. Wilcox v. Virginia-Lee Co., 12 O. I. C. 127.

"Second. Upon the hearing of an application to modify, all the evidence previously introduced is before the board without being reintroduced. Indianapolis, etc., Co. v. Morgan , 129 N. E. 644.

"Third. An application to modify on account of a change in condition cannot avail to show that the facts were really different from what they were found to be at the time of making the original award. Pedlow v. Swartz, etc., Co., 68 Ind. App. 400, 120 N. E. 603; Indianapolis, etc., Co. v. Morgan 129 N. E. 644; Home, etc., Co. v. Cahill, 71 Ind. App. 245, 123 N. E. 415; In re Whitman 136 N. E. 38; Miller v. Riverside & Dan River Cotton Mills, Inc., 13 O. I. C. 18.

"The thought adduced from the foregoing excludes differences of opinion on the same set of facts; refutation of a record on a previous hearing wherein the parties at issue were duly represented; pyramiding of a record by reintroducing that which the former record shows. The limitation of the issue to the confines of the principles above outlined is in the interest of promoting justice between the parties; otherwise, the purpose of the section would be abused by using its provisions to cover an oversight or failure to present a claim for the injury from which the change in condition emanates, thereby substituting an application for a change in condition for an original application. The reopening of a case on a change in condition to permit the expression of a difference of opinion on the former record is subject to the criticism just stated. In addition, it is tantamount to a collateral attack upon the award entered upon the former record; it has the further objection of being an indirect approach to an evasion of the provisions of section 60 of the act relating to reviews: there would be no end to the indefiniteness involved in fixing the rights of the parties. In fact, no award would be stable without the safeguards enumerated.

"In a general way, the foregoing analysis presents the principles involved as a background for the application of the amendment to section 47 in supplying, for the first time, a limitation of twelve months to a change in condition conforming to the foregoing essentials and dating from the day of the last payment on the award outstanding at the time such payment is made.

"It is asserted, as a legal proposition that the amended language, 'but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this act, ' if applied retroactively, is violative of the provisions of section 58 of the Constitution relating to the impairment of the obligation of a contract; that the amendment should be applied prospectively. The defense contends that the amendment is of general application and is retroactive in its operation as it affects the remedy only; that such construction of the language used does not violate section 58 of the Constitution.

"In the case of Whitlock v. Hawkins, 105 Va. 242 , it was held:

" 'Retrospective laws are not favored, and a statute is always to be construed as operating prospectively, unless a contrary intent is manifest; but the legislature may, in its discretion, pass retrospective or curative laws, provided they do not partake of the nature of what are technically called ex post facto laws, and do not impair the obligation of contracts, or disturb vested rights; and, provided, further, they are of such nature as the legislature might have passed in the first instance to act prospectively.'

"The foregoing is accepted as a comprehensive statement of the law relating to retroactive statutes in general.

"The qualifications to the general principle deserve further consideration, viz.:

"The presumption of law is opposed to giv-ing them a retroactive effect unless a contrary intent is manifest. In the instant case the language used is of general application. There appears no date from which it shall operate save by the principles of law applicable to all statutes. The manifest purpose of the constitutional provision, placing the effective date of a statute ninety days from the day of adjournment of the session of the General Assembly, is to allow litigants a fair opportunity to acquaint themselves with the provisions of the statute enacted at a given session in order to institute and prosecute the appropriate proceeding...