Durant v. Butler Bros.
| Decision Date | 13 January 1967 |
| Docket Number | No. 40149,40149 |
| Citation | 275 Minn. 487,148 N.W.2d 152 |
| Parties | Elmer DURANT, Relator, v. BUTLER BROTHERS, Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Where an award of compensation for permanent partial disability was made July 27, 1959, granting employee 63.25 weeks of compensation pursuant to Minn. St. 176.101, subd. 3(19, 43), and a subsequent award of compensation for permanent total disability pursuant to § 176.101, subd. 4, was made November 5, 1963, long after period of time covered by first award had expired and first award had become final, compensation paid in compliance with first award should not have been credited against second award.
No overlapping of payments as between the awards was established, and there is no statutory or decisional authority in this state for the credit ordered by the Industrial Commission.
Spellacy, Spellacy & Lano, Grand Rapids, for relator.
Leonard Kne, Hibbing, for respondents.
Certiorari on the relation of Elmer Durant to review an order of the Industrial Commission filed November 4, 1965. Durant, while employed by respondent employer as a laborer, sustained personal injuries arising out of and in the course of his employment on October 1, 1953, when he was struck by some loose iron ore and fell a distance of 11 or 12 feet onto his knees. He received medical treatment and missed 2 days of work, but received no compensation for a healing period or for temporary total disability. He worked regularly thereafter, except for winter layoffs, until the spring of 1962. On March 16, 1959, he filed a claim petition for compensation for permanent partial disability of the legs, having developed progressive arthritis in both knees. On July 27, 1959, pursuant to stipulation he was awarded $2,213.75, the equivalent of 63.25 weeks of compensation for 15-percent permanent partial disability of his right leg and 10-percent permanent partial disability of his left leg. Employee received this compensation in a 'lump sum' payment pursuant to Minn. St. 176.165, which provides in part:
'The amounts of compensation payable periodically may be commuted to one or more lump sum payments only by order of the commission and on such terms and conditions as the commission prescribes.'
In the spring of 1962 employee underwent a preemployment physical examination but was rejected by employer for various physical conditions, one an increased arthritic condition in both knees.
After the rejection employee petitioned the Industrial Commission to vacate the award of July 27, 1959, and permit him to file a claim petition for permanent total disability. On February 28, 1963, the Industrial Commission granted his petition, permitting him to 'file claim petition for determination of whatever disability he has suffered, if any, after the date of said award.'
After a hearing on August 14, 1963, an Industrial Commission referee found that due to the injuries sustained on October 1, 1953, employee's disability had increased and at the time of the hearing consisted of a 50-percent permanent partial disability of the right leg and a 30-percent permanent partial disability of the left leg. The referee also found that these disabilities had rendered employee permanently and totally disabled from and after May 24, 1962. Employee was awarded compensation at the statutory rate of $35 per week 'from and including May 24, 1962,' payable during permanent and total disability, less the compensation previously paid for permanent partial disability arising out of the same accident. This award was made November 5, 1963, and affirmed by the Industrial Commission June 7, 1965.
It appears that employer interpreted the referee's findings to mean that there should be a waiting period of 63.25 weeks following the award for permanent total disability, during which time employee would received no compensation. Employee interpreted the order to mean that he should receive $35 per week beginning May 24, 1962, and that the $2,213.75 previously paid would be added to payments made under the November 5, 1963, order, so that when the total payments reached $18,000, old age and survivors insurance benefits would be deducted from compensation benefits paid thereafter. When employer refused to pay accrued compensation during 63.25 weeks following the award, employee petitioned the commission for construction of the referee's order.
The commission rejected the contentions of both employer and employee in its order of November 4, 1965. The commission apparently reached the conclusion that in all cases the first 104 weeks of compensation must be denominated 'healing period' and the next compensation payable, 'permanent partial disability.' Since employee had received 63.25 weeks of permanent partial disability, the commission relieved the employer of the duty of paying compensation for 63.25 weeks following May 24, 1964. 1 Employee contends here that the commission erred in so construing the referee's order.
This appeal therefore presents the following issues: (1) Where compensation has been paid for a condition of permanent partial disability and that condition later changes to permanent total disability, should any or all of the amount paid pursuant to a stipulated award for permanent partial disability he credited on the later award for permanent total disability? (2) If any or all of the amount paid under the first award should be credited on the second one, when should such deduction take place?
This appears to be a case of first impression in this state. The law is not at all definite in this area. In 99 C.J.S., Workmen's Compensation, § 330(b), p. 1181, we find the following statement:
'In any case, generally speaking, the crediting of compensation paid against an award is dependent on statutory authority, and whether or not particular payments may be credited against a particular type of compensation award necessarily depends in a large measure on the terms of the applicable statutes and the construction given them by the courts.'
Our Workmen's Compensation Act does not furnish a basis for the Industrial Commission's determination that employer is entitled to credit for the compensation paid for permanent partial disability pursuant to the stipulated award. A careful reading of Minn. St. 176.101--which defines the various classes of disability--, as well as the other provisions of the Workmen's Compensation Act, discloses that the act does not provide for such a credit. The legislature's failure to provide for a credit for compensation paid under § 176.101, subd. 3, for permanent partial disability against a later award for permanent total disability under subd. 4 of the same section is made the more obvious by the fact that it is specifically provided in § 176.101, subd. 6, that previous payments under the compensation act are to be deducted from a subsequent award for 'any compensation due on account of the death' of an employee where both awards arose out of the same accident.
Some states have specifically provided for the type of credit that was granted by the commission in this case. For instance, Idaho Code, § 72--310, provides:
'* * * In case the total disability begins after a period of partial disability, the period of partial disability shall be deducted * * *.'
The Idaho Supreme Court in Endicott v. Potlatch Forests, 69 Idaho 450, 208 P.2d 803, said that this provision required that the total temporary disability and the permanent partial disability awarded an employee must be deducted from a subsequent award for permanent total disability.
Other states have specifically provided that the type of credit granted by the commission in the case at bar shall not be granted. For instance, Fla.Stat.1965, § 440.28, F.S.A., provides that where a prior award of compensation is increased or decreased, '(s)uch new order shall not affect any compensation previously paid'.
The Florida statute does, however, provide for an exception to this rule in cases where a new order decreasing compensation relates back to the time of the occurrence of the injury or is made effective at a date prior to the date or dates on which payments were made at the rate set in the prior award. It is interesting to note that the Florida Supreme Court, in the case of Smitty's Coffee Shop v. Florida Industrial Comm. (Fla.) 86 So.2d 268, held that the exception to the no-credit rule would not apply where the decrease in disability occurred after the prior greater disability award had been exhausted.
The Arizona case of Phelps Dodge Corp., Copper Queen Branch, v. Industrial Comm., 1 Ariz.App. 70, 399 P.2d 691, presents facts very similar to those in the instant case. In the Phelps case an employee was awarded $21.70 per month for life in 1939, based upon a 30-percent permanent partial disability. A lump-sum payment was thereafter sought and paid. In 1963, the employee's claim was reopened, his disability having become total and permanent. The court agreed with the employer that...
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