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

29 N.W.2d 8

224 Minn. 395

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.

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 § 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 § 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 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 injury in which he referred to the injury as one to his left arm or arm. He was permitted to demonstrate to the referee "how much" he could move his hand, how much he could twist his arm and how he could raise his hand to his head. These movements were accompanied by such remarks as "I can do that much, see"; "that much" and "like that"; but the record contains no other statement of what the demonstration showed.

The position taken in the dissenting opinion by Mr. Justice Thomas Gallagher that the question whether employe's whole arm was injured was litigated by consent is untenable. When employe in answering a question was about to state facts concerning his injuries, the following occurred:

"By Mr. Gillette: The injury is admitted here.

"By Mr. Bouschor: We'll just let him give a brief history of the injury." (Italics supplied.)

It is plain that Mr. Gillette intended to object to Mr. Bouschor's going into any matters covered by the stipulation; that Mr. Bouschor not only so understood, but realized that Mr. Gillette's intended objection was a valid one; and that, to obviate further objection, Mr. Bouscher by his statement that he intended only to elicit a brief history of the injury not only intended to assure Mr. Gillette that he did not intend to offer any evidence subject to the latter's objection, but that any evidence that might be given would be entirely consistent with the stipulation and not subject to the objection.

The refereee found that employe had sustained a 25 percent permanent and partial disability of the left arm, and concluded "that the employer herein shall pay 50 weeks of compensation at $20.00 a week— being the sum of $1,000.00 by reason of a 25% permanent and partial disability of the left arm, together with interest to March 1, 1946 in a sum of $674.42 and further interest for the period following March 1, 1946, until all compensation due in this matter has been fully paid." (Italics supplied.) The employer appealed to the commission from the referee's decision on questions of law and fact. The case was heard by the commission upon the record made before the referee. No reference was made in the commission's decision to employe's demonstration of his injuries at the hearing before the referee. Adopting the reports of the physicians introduced by stipulation of the parties as a basis for determining the nature and extent of permanent partial disability, the commission affirmed the referee's decision both as to his findings concerning the nature and extent of the disability and the allowance of interest.

1. Under § 176.18(1), a proceeding by an employe or his dependents to recover compensation is barred, unless commenced within two years after the employer has filed with the commission a written report of the accident and within six years after the date of the accident. Our decisions hold that the workmen's compensation act contemplates that there shall be only one proceeding by an employe or his dependents to recover compensation; that the proceeding must be commenced within the time limited by the statute; that at any time before certiorari to review the award has been issued by this court or the award has been reduced to judgment the commission may under § 176.60 set aside an "award" for cause and grant a new hearing; that the filing with the commission of a final receipt showing voluntary payment in full of compensation by the employer constitutes a proceeding to have the commission determine whether the settlement evidenced by the final receipt conforms to the act; that, where the commission does not disapprove the settlement and payment, the transaction is equivalent to an express award by the commission discharged by payment in full;...