Stice v. Consolidated Indiana Coal Co.
| Decision Date | 02 April 1940 |
| Docket Number | 44946. |
| Citation | 291 N.W. 452,228 Iowa 1031 |
| Parties | STICE v. CONSOLIDATED INDIANA COAL CO. et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Lucas County; George W. Dashiell, Judge.
Proceedings under the workmen's compensation act, Code 1935, § 1361 et seq. A settlement having been entered into, proceedings in review were brought to determine liability under the settlement. An award was made. Thereafter review proceedings were had in reference to the award. A second decision was made. The commissioner granted a rehearing of the second decision and on rehearing made a new award. On appeal to the district court, it was held that the commissioner was without jurisdiction to set aside the first award, but had jurisdiction to modify the second decision. Both parties appeal.
Affirmed on claimant's appeal. Reversed on defendant's appeal.
H. V Levis, of Chariton, for appellant.
Huebner & Huebner, of Des Moines, for appellees.
This is a proceedings under the workmen's compensation act. The claimant was injured on November 15, 1934. On November 30 1935, a memorandum of agreement, executed under date of November 20, 1935, was filed with the commissioner, and thereafter approved on December 13, 1935. This agreement fixed the commencement of disability as October 31, 1935, the rate of compensation at $15.00 per week, but the period of disability and amount of compensation, other than the weekly rate, were left undetermined.
On August 4, 1936, the claimant filed a petition for review of the settlement, asserting that he received partial permanent disability as a result of his injury and praying that he be awarded compensation for such permanent disability. To this petition an answer was filed, which admitted the injury on November 15, 1934, asserted the memorandum of agreement, the payment of compensation in the amount of $285 pursuant thereto, and that such payment fully compensated claimant for all disability suffered on account of the injury. A hearing was had before the deputy industrial commissioner on November 5, 1936. Both parties were represented by counsel and introduced testimony. The matter was fully submitted and on November 9, 1936, the deputy, acting as the commissioner, filed a review decision determining that the claimant's temporary disability did not extend for a longer period than that for which he had been paid compensation by the defendants and that his partial permanent disability amounted to 15 per cent loss of use of his left leg, which entitled him to additional compensation in the amount of $165. Neither party appealed. The additional compensation was paid and the award satisfied.
On July 17, 1937, claimant filed a petition for review of the award of November 9, 1936. Answer was filed, a hearing was had, both parties were represented by counsel and introduced evidence. The matter being finally submitted, on November 18, 1937, the deputy, acting as the commissioner, made a decision determining that the claimant failed to prove a change of condition since the earlier adjudication which would entitle him to additional compensation. Accordingly, recovery was denied.
On November 27, 1937, the claimant filed a petition for rehearing for the purpose of making further argument and presenting further authorities to correct the ruling filed November 18, 1937. To this petition for rehearing, a resistance was filed asserting that there was no authority for such proceeding, and that the claimant was without right or authority to have a rehearing. On December 7, 1937, the industrial commissioner granted the rehearing and ordered a transcript of the evidence. The application for rehearing was amended and the resistance thereto was amended. No additional evidence was introduced and, on December 29, 1937, the commissioner filed a decision and award on rehearing. This decision set aside the decision of November 9, 1936, and the decision of November 18, 1937, on the theory that neither was an adjudication, awarded compensation on the basis of temporary disability existing from October 31, 1935, to April 8, 1937, credited the defendants with the amount of compensation previously paid and awarded claimant an additional sum of $664.28.
Appeal was taken to the district court by the defendants. The court entered judgment on May 20, 1938, determining that the decision of November 9, 1936, was res adjudicata, and that the industrial commissioner had no power or jurisdiction to set the same aside, but sustaining the commissioner's granting of a rehearing as to the decision of November 18, 1937, sustaining his finding that the claimant was temporarily disabled from November 19, 1936, to April 8, 1937, and awarding claimant compensation in the amount of $150 in addition to that previously paid to him. From such judgment both parties appeal to this court.
The first proposition to be decided is whether the district court was correct in holding that the decision of November 9, 1936, was res adjudicata and that the commissioner was without jurisdiction or authority to set it aside. This question has not been decided heretofore by us. We are of the opinion that the court was right and its judgment should be affirmed on this proposition.
In most of the states, the jurisdiction of the commissioner to modify an award for compensation because of the condition of the employee, by express statutory provision, is dependent upon a showing of a change in the condition of the claimant subsequent to the making of the award. Such states include Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, Rhode Island, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont and Washington.
In Iowa, a right of appeal from an award of the commissioner to the district court is provided by Section 1449 of the Code, 1935. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598.In addition thereto, either party may secure a modification or reopening of a settlement or award by the industrial commissioner, pursuant to Section 1457 of the Code, 1935, which provides as follows: " Any award for payments or agreement for settlement made under this chapter where the amount has not been commuted, may be reviewed by the industrial commissioner at the request of the employer or of the employee at any time within five years from the date of the last payment of compensation made under such award or agreement, and if on such review the [industrial] commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded or agreed upon."
The two petitions for review, filed herein, were filed pursuant to the statute above quoted. The question is whether, upon the second hearing before the deputy commissioner, acting as commissioner, pursuant to Section 1425 of the Code, 1935, he was bound by the decision of November 9, 1936, and could modify such award only in the event that the evidence showed a change of condition in the claimant, since such award, that would justify a modification of the award then made. In view of the fact that the statutes of thirty-one states expressly so provide, it would seem that the legislature must have intended by the clause, " if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded," that the modification of the award would depend upon a change in the condition of the employee since the award was made. The commissioner's interpretation of this statute, as granting him jurisdiction and authority to re-litigate and re-determine all questions previously decided, appears to be without support. This is quite apparent when we examine the decisions of jurisdictions having indefinite statutes analogous to our own.
The Utah statute, Rev.St.1933, 42-1-72, provides: " The powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings, or orders with respect thereto, as in its opinion may be justified." In construing this statute, the Utah court has repeatedly held that the commission may not resume jurisdiction of a case regularly determined without some change or new development in the injury complained of not known to the parties when the former award was made. Salt Lake City v. Ind. Comm., 61 Utah 514, 215 P. 1047; Brklacic v. Ind.Comm., 63 Utah 582, 227 P. 1036; Hartford Accident & Ind. Co. v. Miller, 68 Utah 71, 249 P. 249; Aetna Life Ins. Co. v. Ind. Comm., 69 Utah 102, 252 P. 567.In the case of Salt Lake City v. Ind. Comm., supra [61 Utah 514, 215 P. 1048], the reason for the rule is stated as follows, " any other interpretation would invite endless litigation in this class of cases."
The Ohio statute is identical with the Utah statute. It has been construed as authorizing a modification of an award based upon conditions arising subsequent to the award. Industrial Comm. v. Monroe, 27 Ohio App. 169, 161 N.E. 31.But an award is an adjudication as to all matters then determined. Industrial Comm. v. Lucas, 39 Ohio App. 141, 177 N.E. 283.
The West Virginia statute is identical with the Utah statute. In the case of Nichols v. State Comp. Com'r, 111 W.Va. 34, 160 S.E. 854, 855, the court states: ...
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