Aetna Life Ins. Co. v. Industrial Commission of Utah

• Decision Date: 14 November 1925
• Docket Number: 4252
• Citation: 241 P. 223,66 Utah 235
• Court: Utah Supreme Court
• Parties: AETNA LIFE INS. CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

241 P. 223

66 Utah 235

AETNA LIFE INS. CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4252

Supreme Court of Utah

November 14, 1925

Original proceeding by the AEtna Life Insurance Company and another against the Industrial Commission, Byron Light, and others to review an award of compensation.

AWARD ANNULLED.

Emmett L. Kearney, of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty Gen., for Industrial Commission.

Irvine Skeen & Thurman, of Salt Lake City, for Byron Light.

STRAUP J. GIDEON, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

STRAUP, J.

This is a review of proceedings of the Industrial Commission wherein it, under our Industrial or Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165), made an award to Byron Light, an employe of the Solvay Process Company. The commission awarded him the sum of $ 1,551, to be paid in a lump sum by the Process Company or the insurance company, its insurance carrier, in addition to the sum of $ 369 theretofore paid him. The findings of the commission show that Light on August 19, 1924, filed an application with the commission in which it is recited that he was employed by the Process Company at Salduro, Utah, as a machinist helper, and that on the 22d day of August, 1917 (nearly six years prior to the filing of his application), he was injured by reason of an accident arising out of and in the course of his employment whereby his wrist "was broken and crushed," and that the insurance company paid him $ 12 a week for 30 weeks and 4 days; that as the result of the accident he sustained permanent partial loss of the hand and wrist; and that "he believed" the amount paid was not sufficient to compensate him for his loss; and that "I believe that under the compensation act I would be entitled to receive additional compensation, and for that reason I ask that you reopen the case and adjudicate my claim for additional compensation." The findings further recite that a hearing was had, and the facts found to be that Light was injured August 22, 1917, and as in his application stated; that at the time of his injury he was paid a wage of $ 31.40 a week; that the Process Company had procured compensation insurance with the AEtna Life Insurance Company, who, as a result of the injury, paid the applicant compensation in the sum of $ 369, covering a period of 30 weeks and 4 days; and that the injury sustained by the applicant was a compound comminuted fracture, etc., about one inch above the wrist; and that as a result thereof he sustained practically "100 per cent. loss of use of the said right arm from the elbow down." No other or additional facts are found by the commission, and not anything found to excuse or account for the delay in the filing of the application, nor was it found, when the $ 369 or any part thereof was paid by the insurance company. Upon such findings conclusions were stated by the commission that the Process Company or the insurance company should pay Light compensation at the rate of $ 12 a week for 160 weeks, giving them credit for $ 369 theretofore paid, and requiring them to pay in a lump sum $ 1,551 in addition. The commission so ordered.

Among other defenses the bar of the statute of limitations was interposed by each of the companies. What the commission did with the plea, its findings, conclusions, and order are silent. As appears on the face of them, the commission went on as though there were no such plea or statute. Hence the companies are here seeking a review, claiming, among other things, that on the record the application for compensation is barred.

In the case of Utah Con. Min. Co. v. Ind. Comm., 57 Utah 279, 194 P. 657, 16 A. L. R. 458, this court held that an application for compensation under the act must be made and filed within one year from the time of injury, and, unless so done, the claim for compensation is barred. Such holding was followed and approved by subsequent cases. Inter-Urban, etc., Co. v. Ind. Comm., 58 Utah 310, 199 P. 157; Spring Canyon Coal Co. v. Ind. Comm., 58 Utah 608, 201 P. 173; Rezaldo v. Ind. Comm., 61 Utah 412, 213 P. 1083; and McLead v. Sou. P.2d Co., 64 Utah 409, 231 P. 440. Thus on the face of the application and of the findings and order it appears that the injury occurred August 22, 1917, and that the application for compensation was not made or filed until August 19, 1924, and not anything is stated or found that any prior application of any kind had been made or any prior proceedings had with respect thereto or to any claim for compensation, nor anything whatsoever to excuse the delay or toll the statute; and hence, on the face of the application and the findings and order, the action or claim for compensation is clearly barred.

Upon this point counsel for defendants refer us to the cases of Mulhall v. Nashua Mfg. Co., 80 N.H. 194, 115 A. 449, and Chebot v. State Ind. Acc. Comm., 106 Ore. 660, 212 P. 792. In the first case the statute provided that no proceedings for compensation under the Industrial Act should be maintained, unless notice of the accident was given to the employer "as soon as practicable after the happening thereof," and "unless claim for compensation has been made within six months from the occurrence of the accident." The act further provided that "no want or defect or inaccuracy of a notice shall be a bar to the maintenance of proceedings," unless the employer was prejudiced by such want, defect, or inaccuracy. The court there held that, since the giving of a notice was excusable, it must be presumed the Legislature intended that the making of a claim for compensation within six months also was excusable, although the act did not so expressly provide. Such conclusion was largely reached because of the similarity of the New Hampshire statute and the British act, which the court called the parent act. But the court noticed that the British act by express language not only made the want or defect of notice excusable, but also made excusable, which the New Hampshire act did not, the making of a claim within the statutory period, if the failure was occasioned by mistake, absence, or other reasonable cause. Whatever may be said as to the conclusion there reached, this court is committed to a contrary doctrine that, unless claim for compensation is made and filed within the period of limitation, as held in Utah Con. M. Co. v. Ind. Comm., supra, it is barred. Though it should be said that a failure to make or file a claim or an application for compensation within such time could for good cause be excused, yet, as already observed, not anything was alleged, testified to, or found to excuse the long delay--nearly seven years--or to toll the statute.

In the Chebot Case it was held that an application by an injured workman for increased compensation on account of changed conditions or increased disability was not the beginning of a new proceeding, but another step in the proceeding initiated by the filing of the original application for an adjustment of the claim. We do not see wherein the case helps the defendants, for here there was no "original application for an adjustment of the claim," and no proceedings had with respect to any claim, and none filed until nearly seven years after the accident and injury.

All the evidence taken before and heard by the commission was preserved, and as part of the record was transmitted to us. We have examined and reviewed it. But as to the bar of the statute it does not help the applicant nor support the order in such respect. The evidence shows that the injury occurred at the time stated in the application, and as found by the commission; that between the time of injury and January 21, 1918, the insurance company paid the applicant, in consequence of his injury, various payments at the rate of $ 12 per week, and on January 21, 1918, at his request, paid him an additional sum of $ 117, making in all, with the weekly payments theretofore paid, the sum of $ 369, and on that day took from him a final receipt as follows:

"Original.

"Final Compensation Settlement Receipt.

"Do not sign this receipt unless you intend to end payments of compensation and close the case.

"Received of Solvay Process Company and AEtna Life Insurance Co. the sum of one hundred and seventeen & no/100 dollars making in all, with weekly payments already received by me, the total sum of three hundred sixty-nine and no/100 dollars, in settlement and satisfaction of all claims for compensation or damages, subject to review as provided by law, on account of injuries suffered by breaking arm in ditching...