Lappinen v. Union Ore Co.

• Decision Date: 25 July 1947
• Docket Number: No. 34299.,34299.
• Parties: LAPPINEN v. UNION ORE CO. et al.
• Court: Minnesota Supreme Court

224 Minn. 395
29 N.W.2d 8

LAPPINEN
v.
UNION ORE CO. et al.

No. 34299.

Supreme Court of Minnesota.

July 25, 1947.

Certiorari to Industrial Commission.

Proceeding under the Workmen's Compensation Act by Erick Lappinen, claimant, opposed by the Union Ore Co., employer, and another, to recover further compensation for permanent partial disability resulting from an injury for which compensation for temporary total disability had been paid. To review an award of the Industrial Commission allowing further compensation, the Union Ore Co. and another bring certiorari.

Reversed and remanded with directions.

THOMAS GALLAGHER, J., dissenting.

[29 N.W.2d 11]

Syllabus by the Court.

1. Where about eight days after an employe sustained an accidental injury the employer filed with the industrial commission a written report of the accident and about two months after the accident occurred the employer filed with the commission a final receipt for compensation paid to the employe for temporary total disability caused by the injury, a proceeding commenced about 11 years after the filing of the final receipt to recover further compensation for permanent partial disability caused by the same injury is not barred under M.S.A. s 176.18(1), requiring a proceeding to recover compensation to be commenced within two years after the filing by the employer of the report of the accident and within six years after the happening of the accident, for the reason that the proceeding to recover further compensation constitutes a reopening or continuation of a proceeding to recover compensation commenced by the filing of the final receipt within the statutory period.

2. Disability of the hand and lower forearm or of the hand and wrist movement is compensable for the percentage of 175 weeks equal to the percentage of the disability, construing s 176.11, subd. 3(12, 13, 14, 15, 41).

3. While the workmen's compensation act is to be liberally construed to afford coverage of all cases reasonably within its purview, s 176.54 expressly requires all findings upon which any award is made to be based upon competent evidence.

4. It is the duty of the industria, commission not only to try claims for compensation judicially, but to see to it that an injured employe recovers the compensation to which he is entitled under the act and to adapt its proceedings to achieve that purpose; but in so doing it is required to observe the requirements of ordinary fairness and to afford the parties an opportunity to meet and litigate new issues raised by such an adaptation of its proceedings.

5. The commission is the finder of the facts in all cases coming before it on appeal from a referee's decision, regardless of whether the appeal is heard upon the record made before the referee or upon such record and additional evidence taken by the commission.

6. Where in a proceeding to recover compensation (a) the parties stipulate that medical reports showing the nature and the extent of the employe's disability will be used for the purpose of ‘deciding’ the nature and extent of disability and (b) the record shows that at the hearing before a referee the employe over the employer's objection demonstrated his disability, but does not show what the demonstration disclosed or any details thereof, except such expressions as ‘see,’ ‘that much,‘ and ‘like that,‘ the commission hearing the case on appeal from the referee's decision upon the record made before the referee must base its findings concerning the nature and extent of the employe's disability upon the medical reports without considering the demonstration.

7. Where an employe received compensation for temporary total disability, for which he gave a final receipt which was filed with the commission, and thereafter, in a proceeding commenced about 11 years after the filing of the final receipt, he recovered an award for further compensation for permanent partial disability resulting from the same injury, no interest should be allowed on the award for the further compensation prior to the filing of the claim petition to recover it.

8. Where on certiorari to the industrial commission at the instance of the

[29 N.W.2d 12]

employer an award of compensation is set aside, the employer is not liable under s 176.31, subd. 2, for a penalty for interposing a frivolous defense presenting no real controversy.

W. O. Bissonett, of Duluth, for relators.

Royal G. Bouschor, of Duluth (Louisell & Louisell, of Duluth, of counsel), for respondent.

PETERSON, Justice.

Certiorari to the industrial commission to review an award of further compensation for permanent partial disability resulting from an injury for which compensation for temporary total disability had been paid and a final receipt given and filed with the commission.

The questions for decision are: (1) Whether, where eight days after an employe sustained an accidental injury the employer filed with the commission a written report of the accident and about two months after the accident occurred the employer filed with the commission a final receipt for compensation paid to the employe for temporary total disability caused by the injury, a proceeding commenced about 11 years after the filing of the receipt to recover further compensation for permanent partial disability caused by the injury is barred by s 176.18(1), requiring a proceeding by an employe to recover compensation to be brought within two years after the employer has made written report of the injury to the commission and not more than six years after the date of the accident; (2) whether the commission was justified in awarding compensation for permanent partial disability of the employe's left arm as a whole, where the proceeding is brought to recover compensation for permanent partial loss of use of the left hand including wrist movement, and there was no evidence taken at the hearing before the referee as to the nature and extent of the injury, except the reports of two physicians which the parties stipulated would be used for the purpose of ‘deciding’ employe's disability, one of which showed that the disability was limited to the left hand and wrist movement and the other that it was limited to the left hand and lower forearm, but employe, as part of his testimony received for the purpose of giving a brief history of the injury, gave a demonstration before the referee of his hand and arm movements, the details of which are not shown in the record; (3) whether interest should be allowed upon compensation awarded where employe did not proceed to recover it for approximately 11 years after the execution and filing of the final receipt; and (4) whether the employer is liable for a penalty under s 176.31, subd. 2, for interposing a frivolous defense presenting no real controversy, where he prevails in this court.

The facts giving rise to these questions are that on May 8, 1934, the employe, while employed as a mining foreman, sustained a fracture of the upper third of his left arm between the wrist and the elbow; that he received hospital and medical treatment for his injuries; that he was disabled until June 24, 1934, a period of six weeks and four days; that the employer paid him ‘134.56 compensation; that he then returned to his work as a mining foreman; and that on July 6, 1934, he executed a final receipt on a form prepared by the commission. The employer filed with the commission on May 16, 1934, a report of the accident, and on July 9, 1934, it filed the final receipt and a certificate by a physician concerning employe's injuries. The final receipt was processed by the commission. There was correspondence between employe and the commission and an examination of employe by a neutral physician, who found that there was a good

[29 N.W.2d 13]

union of the fracture; that employe had a useful left arm; and that there was no limitation of either elbow or wrist movement. Thereupon, the commission notified the employe that the report filed on July 9, 1934, to the effect that there was no permanent disability, ‘apparently is confirmed.’

In the report of the accident and the physician's certificate filed with the final receipt, the injury in question was described as a fracture of the upper third of the left forearm (the radius). In the claim petition for further compensation for permanent partial disability, the injury is so described and the disability as ‘30 percent loss of use of left hand including wrist movements.’

The case was heard by a referee. No oral medical testimony was taken. In lieu thereof, the parties stipulated that medical reports prepared by their respective physicians, Dr. J. Arnold Malmstrom for the employe and Dr. Robert L. Bowen for the employer, ‘will be used for the cause (purpose) of deciding what medical disability, if any, the employe has.’ The reports were substantially the same, except as to the extent of the resulting disability. Dr. Malmstrom reported that employe complained of pain in the neck, shoulder, and elbow regions radiating down into the hand; that he had a fracture of the left radius; that he had a slightly smaller than normal measurement of the muscle in the upper left arm; that his shoulder and elbow movements were normal; and that he had a definite bowing of the left forearm. His conclusion was that employe sustained a ‘possible loss' of approximately 35 to 40 percent of the use of the left hand and 10 to 15 percent loss of use of the lower left forearm, or a total permanent loss of use of both of approximately 25 to 30 percent. Dr. Bowen found that employe had sustained some loss of grip (of the hand) and limitation of motion of the left forearm and estimated ‘the disability at approximately 25 percent of the hand and wrist.’ There was no evidence showing disability to the left arm as a whole.

At the hearing before the referee, employe was permitted to testify, over the employer's objection, for the purpose of giving a brief history of his injury as to the facts concerning the accident and his...