Middleton v. City of Watertown

• Citation: 16 N.W.2d 39,70 S.D. 158
• Decision Date: 16 October 1944
• Docket Number: 8737.
• Parties: MIDDLETON v. CITY OF WATERTOWN et al.
• Court: Supreme Court of South Dakota

16 N.W.2d 39

70 S.D. 158

MIDDLETON v. CITY OF WATERTOWN et al.

No. 8737.

Supreme Court of South Dakota

October 16, 1944

Caldwell & Burns, of Sioux Falls, for appellants.

D K. Loucks, of Watertown, for respondent.

SICKEL Judge.

The plaintiff is a lineman employed by the city of Watertown, defendant, in the operation of its municipal light plant. The South Dakota Employers Protective Association, defendant, insured the liability of the city under the Workmen's Compensation Law.

On December 18, 1939, Middleton was injured by the fall of a pole. The injuries consisted of a broken left knee and a bruised right knee. They resulted in total disability until April 1st 1940, when he returned to work. Some time later he was taken to a hospital for an operation to remove a plate. Another operation was performed about March 11, 1942, for removal of pieces of bone from the knee joint.

On March 2 1940, Middleton, the city and the insurer signed what is called 'the standard form for agreement as to compensation.' By this instrument is was agreed between them that Middleton should be paid compensation at the rate of $15 per week, based on an average annual wage of $1620 beginning December 19, 1939, and continuing 'until terminated in accordance with the Workmen's Compensation Law of South Dakota.' This agreement was approved by the Deputy Industrial Commissioner March 4, 1940, and filed. The insurer made all payments due under the agreement until October 31st, 1940, amounting to $420. No receipt for final settlement has been filed.

On December 31, 1942, the employee filed a petition for hearing on an additional claim for partial and permanent loss of the use of his left leg. After a hearing thereon, the Commissioner made an award in the sum of $1200. This decision was appealed to the circuit court and affirmed on March 23, 1944. The defendants then appeal to this court.

Appellants contend that the claim for permanent and partial disability is barred by § 64.0611 of the Code, which provides:

'The right to compensation under this title shall be forever barred unless within one year after the injury, or if death results therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the Industrial Commissioner.'

The agreement referred to above was executed by the employee, the employer and the insurer, approved by the Deputy Industrial Commissioner and filed within a year after the injury. This agreement was the equivalent of a claim for compensation within the meaning of § 64.0611, quoted above. Bailey v. Hess, 55 S.D. 602, 227 N.W. 69. The injuries covered by the agreement included the same knee injury for which the claim for partial and permanent disability is made in this action. The agreement allows compensation for the period of temporary, total disability only, and does not refer to or recognize any claim for partial and permanent loss of the use of the employee's left leg. No claim for partial and permanent disability was made by the respondent until he filed the petition for additional allowance two years after the injury.

The agreement for compensation, approved by the Industrial Commissioner and filed, is subject to $64.0609 of the Code, which provides:

'Any payment to be made under this title may be reviewed by the Commissioner at...