Halks v. Rust Engineering Co.

• Decision Date: 13 February 1946
• Docket Number: 15801.
• Citation: 36 S.E.2d 852,208 S.C. 39
• Parties: HALKS v. RUST ENGINEERING CO. et al.
• Court: South Carolina Supreme Court

36 S.E.2d 852

208 S.C. 39

HALKS v. RUST ENGINEERING CO. et al.

No. 15801.

Supreme Court of South Carolina

February 13, 1946

Wise & Whaley, of Columbia, for appellants.

Heyward Brockinton, of Columbia, for respondent.

OXNER Justice.

This is a proceeding under the Workmen's Compensation Act. Code 1942, § 7035-1 et seq. The claimant, Walter P. Halks twenty-six years of age and a carpenter by trade, was injured while in the employ of the Rust Engineering Company on April 21, 1941, when a scaffold on which he was working broke and he fell about twenty feet to the concrete below. It is admitted that the accident arose out of and in the course of his employment. He was immediately taken in an ambulance to a hospital where he was examined by Dr. Owens, who concluded that the patient should be attended by an orthopedic surgeon and called in Dr. Epting. The examination by these physicians revealed that claimant sustained a 'split fracture of oscalcis and a compression fracture of first lumbar vertebrae.' His back was placed in a plaster cast and he remained in the hospital under the care of Dr Epting until May 30, 1941, when he was allowed to go home. The cast was removed in September and on October 1, 1941, Dr Epting signed a certificate to the effect that the disability from the injury had terminated and that claimant would be able to return to work on October 6, 1941. He was advised however, by this physician to do only light work for a while.

Several weeks after the injury a claim adjuster for the insurance carrier visited claimant at the hospital and the parties entered into an agreement in the usual form which provided for the payment of compensation from the date of the injury 'until terminated in accordance with the provisions of the Workmen's Compensation Law', at the rate of $21 per week, based upon an average weekly wage of $35. The Industrial Commission approved the agreement and awarded compensation for temporary total disability, at the rate agreed upon, 'beginning from April 21st and continuing for the period of total disability not to exceed the provisions of the Act.' On May 29, 1941, the day before claimant left the hospital, Heyward Brockinton, Esq. wrote a letter to the Industrial Commission stating that he represented the claimant and requested that the case be docketed and set 'for an early hearing', to which the secretary of the Commission on the following day replied: 'We have entered this case upon our records but will not set a date as yet, due to the fact that Mr. Halks is still in the hospital, and a hearing at this time would be premature as the maximum healing period has not as yet been reached. Mr. Halks is, however, drawing temporary disability compensation weekly. We will advise you at a later date when the hearing will be held.'

The insurance carrier paid compensation at the rate fixed in the award to October 6, 1941, when it was discontinued on the strength of Dr. Epting's certificate that claimant was then able to return to work. Through error compensation for one week during the above period was not paid until January 5, 1942, at which time the error was first discovered. After Mr. Brockinton notified the Commission that he represented the claimant, the weekly compensation checks were delivered to claimant through his attorney. The adjuster for the insurance carrier testified that he informed Mr. Brockinton of Dr. Epting's report and advised him that the payment of January 5, 1942 was a final one. He further testified that he heard nothing further from claimant's attorney and closed the case. However, it is undisputed that claimant refused to sign a final settlement receipt.

Claimant testified that he was unable to do any work from the date of his injury to May, 1942, at which time he secured light work with a contractor and received weekly wages of approximately $18. From May, 1942 to June, 1943, he worked for several individuals and firms and during most of this period earned as much as, and at times more than, he received at the time of his injury. Claimant further testified that this work was of a light nature; that since the accident he has continuously suffered from his injuries; that he has been unable to do any work which required stooping or heavy lifting; and that finally in June, 1943, he was compelled to discontinue all work.

On October 3, 1942, the adjuster for the insurance carrier wrote the following letter to the Industrial Commission: 'We have received your request for Final Settlement Receipt in connection with this case, and we wish to advise that we were never successful in getting this employee to sign a Final Settlement Receipt. All compensation due has been paid.' On August 12, 1943, claimant wrote a letter to the Industrial Commission in which he stated that he was unable to work and support his family and inquired if he could secure further compensation. Thereafter hearings were had before Commissioner Dukes in October and December, 1943.

At the first hearing the employer and carrier made a special appearance and objected to the jurisdiction of the Commission on the ground that any further claim was barred by Section 46 of the Act, Section 7035-49 of the 1942 Code, as more than a year had elapsed since the date of the last payment of compensation. The objection was overruled and the hearing proceeded subject to the jurisdictional objection. On May 11, 1944, Commissioner Dukes awarded claimant $1,500 'for disfigurement of a serious nature,' and further awarded compensation 'from the date he was unable to continue work until he is released by a competent physician as being able to return to work.' His finding of fact as to disfigurement is as follows: 'I have observed Mr. Halks carefully and I find that he weighs about 140 pounds, having gaunt figure, being stooped, and that he walks with a decided limp and that his feet and ankles were swollen.' This award was thereafter confirmed by a majority of the full Commission, from which the insurance carrier and employer appealed to the Circuit Court. Thereafter the matter was heard in the Circuit Court and on May 12, 1945, an order was filed affirming the award of the Industrial Commission.

The first question to be determined is appellants' contention that the claim is barred by Section 46 of the Act, which authorizes the Commission to review an award on the ground of a change in condition, but provides that 'no such review shall be made after twelve months from the date of the last payment of compensation.' Respondent asserts that he is not seeking to review an award on the ground of a change in condition. He contends that the compensation now sought is on the original claim.

In Gold v. Moragne et al., 202 S.C. 281, 24 S.E.2d 491 494, the Court said: 'The agreement for compensation for temporary total disability, timely filed and approved as hereinbefore stated, gives all the information that could reasonably be required to be contained in a claim to be filed by or in behalf of an employee.' Indeed, appellants make no contention that there was a failure to comply with Section 24 (a) of the Act, Section 7035-27(1) of the Code of 1942, which requires a claim for compensation to be filed within one year after the accident. It was further held in that case that when a claim is filed, all elements of compensation are included, the Court stating that 'it was not contemplated by the Act that different parts of the total result of...