Rupp v. Jacobs

• Decision Date: 08 April 1939
• Docket Number: 34296.
• Citation: 149 Kan. 712,88 P.2d 1102
• Parties: RUPP v. JACOBS et al. [*]
• Court: Kansas Supreme Court

88 P.2d 1102

149 Kan. 712

RUPP v. JACOBS et al. ^[*]

No. 34296.

Supreme Court of Kansas

April 8, 1939

Syllabus by the Court.

A written claim for compensation served on employer within 90 days after employer suspended making voluntary payments to employee at former wage rate while employee was engaged in doing light work in accordance with directions of insurance carrier's physician was timely, since payments under circumstances sufficiently partook of nature of "compensation" to prevent barring of claim. Gen.St.1935, 44-510(22), 44-520a, 44-534.

Notice and demand for compensation is timely if given within 90 days after employer suspends voluntary and informal payments of compensation.

Appeal from District Court, Ellis County; C. A. Spencer, Judge.

Proceeding under the Workmen's Compensation Act by Lawrence E. Rupp claimant, opposed by Linus Jacobs, doing business as the Hays Oil Company, also as the Neps Super Service, and/or the Jeps Super Service, and the Hartford Accident & Indemnity Company insurance carrier. From a judgment reversing an award of the commissioner, in favor of claimant, claimant appeals.

Reversed and remanded with directions.

THIELE and HARVEY, JJ., dissenting.

J. H Jenson and Paul Ward, both of Hays, for appellant.

Jerry E. Driscoll and Harold W. McCombs, both of Russell, for appellees.

ALLEN Justice.

This is a workmen's compensation case. The legal question to be determined is whether the claim for compensation was made within the time required by the statute. The trial court held the claim was not made in time. Plaintiff appeals.

A preliminary question is presented. Defendants have filed a motion to dismiss the appeal on the ground that the appeal presents no question of law for review. In support of this motion plaintiff relies on cases where a denial of claimants demand for compensation raised no question of law, but called for re-examination of facts determined by the trial court. Jones v. Flexible Forms Co., 140 Kan. 416, 36 P.2d 1027; Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P.2d 325.

But as will be seen we are confronted on this appeal with the question whether payments made to the plaintiff after the accident under the circumstances to be stated are to be considered as wages or as compensation within the meaning of our statutes. As we think the solution of this question presents a strict question of law, the motion will be overruled.

The plaintiff was employed as a service station helper in a super service station at Hays, Kansas. On July 17, 1937, he sustained an accidental injury arising out of and in the course of his employment, when he fell on a slippery floor striking his back and hip on the bumper of a car.

The facts appear from the findings made by the trial court as follows:

"The claimant met with an injury on July 17, 1937, when he slipped on a wet floor and fell, striking his back and hip on the bumper of a car, causing an injury to his spine from which he has never recovered, and which before there is any improvement in his condition will require some sort of stabilization of the fifth lumbar vertebra. Dr. Eddy testified that this might be accomplished by some sort of stabilization fixation of the point, whether it is bed rest, a brace, or an operation-- anything that will hold the spine in a fixed spot. The court finds that the claimant is unable to perform heavy manual labor and that this condition will continue until a stabilization of the fifth lumbar vertebra is made; that the claimant is now temporarily totally disabled, and that the period of time such disability will continue is problematical and uncertain; but that claimant cannot recover compensation because of his failure to serve a written claim for compensation upon his employer within ninety days after the accident or the suspension of the last payment of compensation as required by G.S. 44-520a.

"Claimant sustained an injury on July 17, 1937. He was paid compensation to the amount of $30.00 during the month of August, 1937. Shortly after the injury, he was sent by the respondent to Dr. Coffey at St. Anthony's Hospital in Hays, whose fees, together with the bill for hospital services, were paid by the respondent or its insurance carrier on October 2, 1937. He next took some treatments from Dr. Bice, for whose services he paid, and in August, 1937, took four or five treatments from Dr. Bogue, for whose services respondent paid.

"On August 29, 1937, claimant received a letter from the insurance carrier, directing him to go to Kansas City, Mo , for an examination and possible further treatment by Drs. Dickson & Diveley, orthopedic surgeons, and sending a draft for $15.00 to defray expenses. He immediately went to Kansas City and was advised by the doctors that he had a bruised muscle, that no further medical attention was needed, to go home and go to work-- that work will be the only thing that will fix you up. Claimant returned to Hays and resumed work for the respondent at the same weekly wage he had been receiving before the injury, namely $22.00 per week. He was given light work and continued to work until some time in May, 1938, when he became too ill to work. Respondent went to claimant's house about the middle of the following week and told him to go to a nerve specialist at Halstead. No wages were paid or other payments made by respondent to claimant after he quit work in May, 1938. From June 23, 1938, to July 10, 1938, claimant was in a hospital at Halstead. The bill for this was charged to the respondent. Claimant returned to Halstead on August 19, 1938, and stayed until September 15, 1938.

"A claim for compensation was served personally on the respondent on July 7, 1938.

"After the examination of the claimant made by Drs. Dickson & Diveley on August 29, 1937, no further medical service or treatment was furnished by the respondent or its insurance carrier until June 23, 1938, an interval of almost ten months. However, regular weekly wages were paid him until he quit work in May, 1938. During that time or prior thereto, no claim for compensation was made."

Thereafter the court made supplemental findings wherein it is stated: "The claimant contends that the payment of wages from September, 1937, to May, 1938, were payments of compensation and so considered by both respondent and claimant, and should be so considered by the court. If these payments were made as compensation for the injury sustained and not as wages, or if any part of the weekly payments of $22 may be so considered, then the claim was filed in time, but the court can find nothing in the evidence that would justify such finding or conclusion. The claimant repeatedly referred to these payments as wages. He further testified, 'I was working every day. I got my regular weekly salary and I thought, well, being as that doctor down there told me there was nothing wrong with me, I thought maybe Dr. Bice could get what pain I had out of me. He was paying me just like I was doing any kind of work but he told me not to work too hard, and I was just getting the lightest work around there. He knew what condition I was in and he knew what a family I had. Work was scarce at that time and I couldn't get it. I just kept plugging along until I couldn't no more."'

In case of an accident arising under the workmen's compensation law the employer and employee may agree upon the amount of the compensation to be paid.

Our statute G.S.1935, 44-510, subsection 22, provides: "Should the employer and the employee be unable to agree upon the amount of compensation to be paid in any case of injury not covered by the schedule, the amount of compensation shall be settled according to the provisions of this act as in other cases of disagreement. ***"

Our Statute, G.S.1935, 44-534, provides: "A workman's right to compensation under this act may in default of agreement or if the employer and employee shall not agree upon arbitration, be determined and enforced by the commission, ***."

Our statute G.S.1935, 44-520a, provides that no proceedings for compensation shall be maintained unless a written claim for compensation shall be made "within ninety (90) days after the accident, or in cases where compensation payments have been suspended within ninety (90) days after the date of the last payment of compensation; ***."

In Gailey v. Peet Bros. Manufacturing Co., 98 Kan. 53 157 P. 431, an employee was injured in July, 1913. After a few days he returned to work for the defendant and did light work which he could perform with one hand until January, 1914, when he returned to his original work at which he continued until March, 1914. During all this time he received the same wages that he was receiving when he was hurt. The court said: "The defendant argues that within two weeks after the injury the plaintiff was employed by the defendant at the same wages at which he had been employed previous to receiving the injury, and that he voluntarily quit the defendant's employ. If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employé and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured employé may not wish to continue to work for the one in whose employ he was injured, and because of his injury he cannot obtain as good wages in another place. The injured employé has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed. The act fixed the liability when the employé was injured. That liability can be discharged only...