Davis v. Haren & Laughlin Const. Co.
| Decision Date | 16 May 1959 |
| Docket Number | No. 41408,41408 |
| Citation | 339 P.2d 41,184 Kan. 820 |
| Parties | Gus DAVIS, Claimant and Appellee, v. HAREN & LAUGHLIN CONSTRUCTION COMPANY (Respondent) and United States Fidelity & Guaranty Company (Insurance Carrier), Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in a workmen's compensation case to review and modify claimant's original award pursuant to G.S.1949, 44-528, examined and held: There was substantial evidence to support the order modifying and increasing claimant's original award, and the district court did not err in any of the particulars asserted by appellants, as more fully set forth in the opinion.
Walter Fuller, Jr., Kansas City, argued the cause and was on the briefs for appellants.
John E. Shamberg, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider and Joseph P. Jenkins, Kansas City, were with him on the briefs, for appellee.
This is a workmen's compensation case. An award was entered in favor of the claimant appellee and affirmed by the district court. Later, on motion of the claimant, the commissioner entered an order modifying and increasing the original award. The employer and its insurance carrier appeal from the order of the district court adopting the commissioner's findings and modified award.
Claimant sustained an accidental injury on December 14, 1955. In the original compensation hearing, held before examiner Albert O. Kiesow, claimant was awarded compensation based upon a ten percent permanent partial disability. The award was dated March 5, 1957, and was approved by the workmen's compensation commissioner.
On July 27, 1957, claimant filed a motion for review and modification of the award pursuant to G.S.1949, 44-528, upon the ground that his physical condition had worsened and the degree of disability attributable to his injury had increased since the original hearing. Subsequently that motion was enlarged to include the ground that the original award was inadequate.
A hearing on that motion was had before examiner Kiesow and on January 29, 1958, he orally denied the motion, but entered no written order or award.
On February 14, 1958, claimant attempted to appeal to the district court from the oral ruling of the examiner. However, the appeal was not perfected. The notice of appeal was forwarded to the workmen's compensation commissioner in Topeka, who, on February 19, 1958, wrote the claimant that all awards must be in writing and that the appeal would be held and sent to the district court when the written award was filed in his office and mailed to the interested parties. Shortly thereafter examiner Kiesow resigned without preparing or filing a written award.
On June 2, 1958, the workmen's compensation commissioner entered a written award modifying the original award and allowing the claimant 40 percent permanent partial disability effective July 17, 1957. The modified award specified it was granted upon claimant's application for review and modification heard by examiner Kiesow.
On June 17, 1958, the employer and its insurance carrier appealed to the district court from the commissioner's order modifying the original award. The court affirmed the order in a journal entry dated November 7, 1958. In a letter of judgment it stated it had read the citations given by counsel and most of the transcript of testimony in the original hearing, as well as the testimony of the hearing to modify the original award; that it was not prepared to say the commissioner's award was not supported by competent evidence or was contrary to law, and that it concurred in the commissioner's findings and modified award. The employer and its insurance carrier appeal from that judgment.
Appellants here maintain that the judgment of the district court should be reversed on five grounds. They first argue that the commissioner had no power to enter an order modifying the original award after a notice of appeal had been filed and an appeal was pending. They cite G.S.1949, 44-549, providing in effect that the award or order of an examiner, when filed in the office of the commissioner, shall be deemed to be the award or order of the commissioner; and G.S.1949, 44-556, providing that the commissioner, immediately upon the filing of a notice of appeal, shall transmit a copy of the notice to the clerk of the district court who shall docket the cause for hearing. They next contend the commissioner was without power to issue an order modifying the award four months after the hearing before the examiner, without notice or hearing of further evidence, and cite G.S.1949, 44-523, providing that an award shall be made within thirty days after submission unless the time is extended by agreement of the parties.
We are not persuaded the contentions are meritorious. G.S.1949, 44-525 provides that every finding or award of compensation shall be in writing. Here, the examiner, at the conclusion of the hearing on the motion for review and modification, denied the motion in an oral statement and resigned without filing a written statement or award. Since the examiner's ruling was not in writing in effect there was no award from which an appeal could be taken and claimant's purported appeal of February 14, 1958, was of no effect. It was therefore within the competence of the commissioner to make an award upon the record adduced before the examiner. While G.S.1949, 44-523 provides than an award shall be made within thirty days from the time the matter is submitted, this court held in Ketchell v. Wilson & Co., 138 Kan. 97, 99, 23 P.2d 488, that although the statute is designed to secure prompt action, it does not impose a time limitation upon the commissioner's jurisdiction to make an award.
Appellants next contend the commissioner had no right to set the date...
To continue reading
Request your trial
-
Gawith v. Gage's Plumbing & Heating Co.
...the jurisdiction and power of the district court on such appeal as a '(trial) de novo on the record.' (Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P.2d 235; Rorabaugh v. General Mills, 187 Kan. 363, 35......
-
Pence v. Centex Const. Co.
...for final hearing. In the next, under somewhat similar conditions and circumstances, this court in Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41, said: '* * * Since the examiner's ruling was not in writing in effect there was no award from which an appeal could be ta......
-
Durnil v. Grant
...district court where the case is tried de novo. Burns v. Topeka Fence Erectors, 174 Kan. 136, 254 P.2d 285; Davis v. Haren & Laughlin Construction Co., 184 Kan 820, 339 P.2d 41, and Wilson v. Santa Fe Trail Transportation Co., The claimant (appellee) argues that through this unique arrangem......
-
Rorabaugh v. General Mills, Inc.
...district court where the case is tried de novo. Burns v. Topeka Fence Erectors, 174 Kan. 136, 254 P.2d 285; Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41, and Wilson v. Sante Fe Trail Transportation Co., The workmen's compensation act, G.S.1949, 44-501 et seq., presc......