Larrick v. Hercules Powder Co.

Decision Date24 January 1948
Docket Number37040.
Citation188 P.2d 639,164 Kan. 328
PartiesLARRICK v. HERCULES POWDER CO. et al.
CourtKansas Supreme Court

Appeal from District Court, Johnson County; John L. Kirkpatrick Judge.

Proceeding under the Workmen's Compensation Act by Anna L. Larrick claimant, opposed by the Hercules Powder Company, employer and the Employer's Mutual Liability Insurance Company wherein the claimant was awarded compensation for temporary total disability. Thereafter the claimant filed an application for modification and review of the previous award, claiming that she was still disabled. The Compensation Commissioner denied the application, and the claimant appealed to the district court. From a judgment affirming the decision of the Compensation Commissioner, the claimant appeals.

Judgment affirmed.

Syllabus by the Court

1. Under the provisions of the workmen's compensation act (G.S.1935, Ch. 44, art. 5, as amended) the furnishing of medical services by an employer to an employee is the payment of compensation.

2. Under the above act, the duration of a workmen's incapacity is a question of fact to be determined by the trier of the facts.

3. Under the above act, compensation to the workman should cease when his incapacity ends.

4. Under the above act, an award by the compensation commission from which no appeal is taken becomes final and binding on the parties.

5. A workman sustained injuries on June 1, 1945, a hearing was had on October 19, 1945, and an award was made on December 19, 1945, for 25 compensable weeks at the rate of $18 or for the total sum of $450; all of which was past due and owing and which was ordered paid in one lump sum, and for medical services, as more fully set out in the opinion. No appeal was taken from the award. On January 17, 1946, the workman filed her petition for review and modification of the award. Held, that the award had become final, that the period of incapacity of the workman had ended before the petition for review and modification was filed, and that it was too late.

Joseph Cohen, of Kansas City, (Charles S. Schnider and Sol. M. Weinstein, both of Kansas City, and Clayton Brenner, of Olathe, on the brief), for appellant.

James K. Cubbison, of Kansas City (Blake A. Williamson and Lee Vaughan, both of Kansas City, all Howard E. Payne, of Olathe, on the brief), for appellees.

THIELE Justice.

This appeal arises from a proceeding under the workmen's compensation act, G.S.1935, 44-501 et seq., the principal question submitted being whether an award of compensation was prospective in operation so as to authorize proceedings for its review and modification, or, on the contrary was retrospective and final.

The record discloses that on June 1, 1945, the workman sustained an accidental injury and made a claim for compensation which was heard on October 19, 1945. On December 19, 1945, the compensation commissioner approved an award for 25 compensable weeks of temporary total disability payable at the rate of $18 per week, or the total sum of $450, all of which was past due and owing and was ordered paid in one lump sum. The award continued as follows: 'Further award is made in favor of this claimant and against the respondent and insurance carrier in that they are ordered to pay the bill of Dr. T. W. Reid, Gardner, Kansas, and provide further medical and hospital care for the claimant at an expense in all not to exceed five hundred ($500) dollars.'

Neither party appealed from the award. The workman accepted payment of $432 of the award and refused payment of $18. On January 17, 1946, she filed her application for a modification and review of the award of December 19, 1945, claiming that she was still disabled. When this application came on for hearing, the respondent objected to the introduction of any evidence on the ground that the previous award was complete, final and fully res judicata; that the workman's disability had ceased prior to the rendition of the award, and even though the last payment of compensation had not been accepted by the workman, there could be no review of the award. The compensation commissioner made no immediate ruling on the objection, but stated he would hear the evidence, and did so. On December 2, 1946, the commissioner found that the award of December 19, 1945, was for 25 compensable weeks; that it was assumed by the examiner, at the time, the respondent would furnish the claimant with professional service after the original hearing upon which the award was later based and he therefore made an indefinite award in behalf of the workman as her doctor at the original hearing testified that four or five weeks' treatment would aid her; that since the award of December 19, 1945, made no provision for prospective payments of compensation, and only provided for compensation which was past due, the workman was precluded from relief by the principles of law set out in Williams v. Lozier-Broderick & Gordon, 159 Kan. 266, 154 P.2d 126, and her application for review and modification was denied and dismissed.

The workman appealed to the district court, which filed a written opinion in which it reviewed the situation, directed attention to Gorrell v. Battelle, 93 Kan. 370, 144 P. 244, and Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P.2d 5, as holding that the workmen's compensation act provides for compensation during incapacity and that the implication is that compensation should cease when incapacity ends, and concluded that the original award of December 19, 1945, in effect declared that incapacity had ceased before the award was entered; that the award was retrospective so far as the direction to furnish medical aid was concerned since at the time of the hearing on October 19, 1945, enough of the compensable time of 25 weeks remained so that medical aid could have been furnished contemporaneously therewith and therefore the award was final in event of failure to appeal. The court affirmed the order of the compensation commissioner.

In this court the workman's contentions, shortly stated, are that the trial court erred in affirming the order of the compensation commissioner in that the furnishing of medical service by the employer to the workman is payment of compensation (Wolgamott v Vinegar Hill Zinc Co., 151 Kan. 374, 99 P.2d 755; Pittman v. Glencliff Dairy Products Co., 154 Kan. 516, 119 P.2d 470, 144 A.L.R. 600; and Bishop v. Dolese Brothers Co., 155 Kan. 288, 124 P.2d 446; and cases cited); that this court has held that the furnishing of medical treatment is the payment of compensation so as to toll the statute of limitations (Richardson v. National Refining Co., 136 Kan. 724, 18 P.2d 131, modifie...

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9 cases
  • Meredith v. Shawver Graham, Inc.
    • United States
    • Kansas Supreme Court
    • July 3, 1951
    ...first of these last two contentions they rely on Williams v. Lozier-Broderick & Gordon, 159 Kan. 266, 154 P.2d 126; Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P.2d 639; and Hardin v. Beck Mining Co., 166 Kan. 95, 199 P.2d 186. It is true the opinion in the Hardin case contains some l......
  • Zimmerman v. O'Neill Tank Co.
    • United States
    • Kansas Supreme Court
    • May 13, 1961
    ...720-722, incl., 237 P.2d 373; Ellis v. Kroger Grocery & Baking Co., 159 Kan. 213, 218-221, incl., 152 P.2d 860; Larrick v. Hercules Powder Co., 164 Kan. 328, 333, 188 P.2d 639; Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P.2d 5; Austin v. Phillips Petroleum Co., 138 Kan. 258, 260, 25 P.2d ......
  • Moore v. Dolese Bros. Co.
    • United States
    • Kansas Supreme Court
    • October 6, 1951
    ...of R.S. Supp.1931, 44-520a * * *.', now G.S.1949, 44-520a. This has been followed in several cases, including Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P.2d 639. We have also held that the statutory limitation upon the amount of medical aid required of an employer to be furnished, o......
  • Peterson v. Fairmont Food Co.
    • United States
    • Kansas Supreme Court
    • June 9, 1956
    ...condition of the claimant and not to findings of past facts, citing Gant v. Price, 135 Kan. 333, 10 P.2d 1082, and Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P.2d 639, and argue that the question of dependency was determined on the basis of conditions existing on the date of the acci......
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