Nelson v. Reid & Wackman

• Court: Minnesota Supreme Court
• Writing for the Court: Frank T. Gallagher
• Citation: Nelson v. Reid & Wackman, 36 N.W.2d 544, 228 Minn. 137 (Minn. 1949)
• Decision Date: 18 March 1949
• Docket Number: No. 34871.,34871.
• Parties: NELSON v. REID & WACKMAN et al.

36 N.W.2d 544

228 Minn. 137

NELSON v. REID & WACKMAN et al.

No. 34871.

Supreme Court of Minnesota.

March 18, 1949.

Proceeding under the Workmen's Compensation Act by Clarence Nelson, claimant, opposed by Reid & Wackman, employer, and its insurance carrier. To review an order of Industrial Commission affirming the determination of a referee denying compensation, claimant brings certiorari.

Affirmed.

Lowell W. Benshoof and P. F. Schroeder, both of Detroit Lakes, for relator.

Reynolds & McLeod, of Minneapolis, for respondents.

FRANK T. GALLAGHER, Justice.

Certiorari to review an order of the industrial commission affirming the determination of a referee denying compensation to relator, Clarence Nelson.

Relator was employed by respondent Reid and Wackman in April 1947 as a truck driver to load and haul timber, cement, and other building materials. At that time, Wallace E. Reid, employer's manager, had been acquainted with relator for many years. He knew that relator had undergone an operation in 1944 to remove a loose cartilage in his right knee, and he noticed that relator favored this knee, although it did not interfere unduly with his ability to do his work.

Relator claims that on or about June 4, 1947, a bundle of hay-bucker teeth which he was handling fell against his knee, but he thought that the injury was trivial and did not report it. About the middle of June, while relator was delivering some merchandise for employer and while accompanied by one Roof, another employe, he claims that he stepped into a hole and twisted his knee. He contends that Roof was a supervisory employe and that therefore Roof's knowledge is imputed to the employer. This supervisory capacity is denied by both the employer and Roof. After this occurrence, relator claims that his knee began to swell, fill with fluid, and cause considerable pain. On or about June 18, Reid noticed that relator limped, and he asked him if his knee was bothering him. Relator testified that he replied:

"* * * `Yes,' I said, `I twisted and bumped it and it has been sore.'

* * * * * *

"* * * I didn't think it was so terribly serious but I said, `When we get a slack day I will go up and see Dr. Fortin, see what he thinks about it.'

* * * * * *

"* * * so he [Reid] said: `Any time you want to, you go'."

The next day, June 19, relator consulted a doctor. As a result of this consultation, relator advised Reid on June 20 that the doctor had told him he could not continue to do the heavy work he had been doing, whereupon Reid discharged him. Relator's knee did not respond to treatment by aspiration, and sometime prior to July 17, while one of employer's supervisory employes was fishing near relator's land, relator, in response to an inquiry, informed this supervisory employe that he was going to have another operation on his knee. Employer denies that this employe was a supervisory employe, but admits that he did at times exercise supervisory authority. In September 1947, relator was using a cane or single crutch, at which time he saw Reid in the latter's place of business on another matter.

On November 12, 1947, relator went to Reid and asked him if he was not entitled to compensation for the injury. Relator told Reid at that time that he had hurt his knee while unloading bucker teeth, but he gave no excuse for not reporting the injury sooner. Reid notified his insurer, which investigated, and on December 5, 1947, the insurer obtained a statement from relator to the effect that he had not mentioned the particular accident to Reid in connection with his injury. Employer and its insurer now deny liability for compensation because the proper knowledge or statutory notice was not given within the 90-day period.

The hearing on the original claim petition was held on April 7 and 8, 1948, before a referee. On April 30, 1948, the referee's decision disallowing relator's claim for compensation and benefits was filed with the industrial commission. On appeal to the industrial commission, the findings and determination of the referee were affirmed.

The only contested finding before this court is the following:

"That said employer never had statutory notice of the accident occurring on or about June 4, 1947, nor of the accident occurring on or about June 15, 1947." (Italics supplied.)

In reviewing an order or determination of an administrative board, the supreme court will go no further than...