Tegels v. Western Chevrolet Co.

• Decision Date: 30 December 1965
• Docket Number: No. 10213,10213
• Citation: 81 S.D. 592,139 N.W.2d 281
• Parties: Clarence TEGELS, Claimant and Respondent, v. WESTERN CHEVROLET CO., a Corporation, Employer, and Hardware Mutual Casualty Company, a Corporation, Insurer,Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 281

139 N.W.2d 281

81 S.D. 592

Clarence TEGELS, Claimant and Respondent, v. WESTERN CHEVROLET CO., a Corporation, Employer, and Hardware Mutual Casualty Company, a Corporation Insurer,Defendants and Appellants.

No. 10213.

Supreme Court of South Dakota.

Dec. 30, 1965.

Rehearing Denied Feb. 21, 1966.

Woods, Fuller, Shultz & Smith, and Merle Johnson, Sioux Falls, for employer and insurer, appellants.

Shandorf & Bleeker, Mitchell, for claimant and respondent.

HANSON, Judge.

In this Workmen's Compensation proceeding the employer, Western Chevrolet Company, and its insurer, Hardware Mutual Casualty Company, appeal from a judgment affirming an award for total disability granted by the Industrial Commissioner to the employee, Clarence Tegels.

In 1954 Tegels commenced working for the Western Chevrolet Company in Mitchell as a parts man. He was in good health except for a prior history of ulcers and a back injury sustained in prior employment. Cars were repaired and spray painted in the garage. The paint booth was a separate enclosure off a corner of the body shop area equipped with tilters and an exhaust fan. Some spot painting was also carried on in the body shop area. As part of his duties Tegels delivered parts and paint to the repair body shop and paint booth. There was also a drum of paint remover or thinner outside the paint booth which Tegels used from time to time to wash the grease and grime from his hands.

In July 1956 Tegels began having severe headaches. A spot appeared on one of his cheeks. He experienced some instability and eye trouble and his hair started falling out. By December 1956 he had no body hair and had become nervous and irritable. His employment terminated December 10, 1956. The Industrial Commissioner found Tegels' condition resulted from exposure and inhalation of fumes from the spray painting operation conducted by the garage.

After terminating his employment Tegels received compensation payments from the Hardware Mutual Casualty Company under a group insurance policy carried by the garage. On March 19, 1957 the insurer wrote Tegels a letter advising they were investigating his injury and would either continue to make payments under the group policy or the Workmen's Compensation policy. On April 23, 1957 the insurer wrote Tegels that '* * * we have just received a report from Dr. Smith wherein he indicates that your present condition was brought about by fumes from the paint spraying activities carried on in the garage and it was his opinion that your condition was directly related to this activity. We are therefore settint up a Workmen's Compensation Insurance file and have transferred all payments made under the Group Insurance to the Workmen's Compensation file and are bringing your payments up to date. * * * We will continue to pay you weekly compensation benefits at the rate of $26.84 per week until you are able to return to work or discharged by your doctors.' On April 26, 1957 the employer filed a standard form of Employers First Report on Injury with the Industrial Commissioner. The insurer also filed receipts for compensation paid Tegels in accordance with its letter of April 23rd together with a letter from Dr. George Smith in which the doctor said 'The diagnosis in the case based on clinical opinion is a toxic insult to the optic nerves and hair follicles presumed to be exposure to volatile agents in connection with automobile spray painting.' The insurer paid compensation at the rate of $26.84 per week up to August 1, 1957 at which time all payments were stopped except medical and hospital expenses. On August 23, 1957 a letter was written by the law firm of Morgan & Fuller, of Mitchell, to the insurer with regard to Tegels' claim and a copy was filed with the Industrial Commissioner.

From December 1956 to July 1957 Tegels was not employed. From July to October 1957 he attended the Greer Refrigeration School in Chicago with assistance from the State Rehabilitation Department. After returning from Chicago he was employed part time by the S & T TV Company of Mitchell until the concern moved out of the city in 1958. Later on in 1958 he worked part time for an implement company setting up machinery. In 1959 he started repairing washing machines and small appliances in his own home. Other members of the family helped in this work. From 1956 to 1963 Tegels was hospitalized several times and was examined or treated by numerous doctors in Mitchell, Sioux Falls and Minneapolis. His condition was aggravated by an emotional or nervous disturbance which did not improve. Because of pain, extreme nervousness and instability he was unable to perform any gainful work in 1963.

Tegels did not file a formal claim for compensation with the Industrial Commissioner until May 1963. Because of this the employer and insurer contend his claim is barred by SDC 64.0611 which provides:

'The right to compensation under this title shall be forever barred unless within one year after the injury * * * a claim for compensation thereunder shall be filed with the Industrial Commissioner.'

The purpose of requiring a claim for compensation to be filed by an injured employee, like notice of injury, is to protect employers against stale claims which cannot be promptly investigated. The employee's failure to file a formal timely claim with the Industrial Commission in the present proceeding in no way prejudiced the employer or its insurer. Both had notice of the injury and it was promptly and continually investigated.

Although this court has characterized the filing of a claim as a condition precedent to the right of an injured employee to maintain Workmen's Compensation proceedings, Weber v. Reihsen Mercantile Corporation, 77 S.D. 377, 92 N.W.2d 154, it nevertheless has recognized reasons or excuses for nonfiling and late filing. In Bailey v. Hess, 55 S.D. 602, 227 N.W. 69, a formal claim for compensation was never filed by the injured employee and the court held a memorandum settlement agreement filed with and approved by the Industrial Commissioner was equivalent to a claim. Likewise, in Middleton v. City of Watertown, 70 S.D. 158, 16 N.W.2d 39, a settlement agreement entered into by the employee, employer, and insurer approved by and filed with the Industrial Commissioner was sufficient to confer 'continuing jurisdiction upon the Industrial Commissioner for the determination of all questions of future liability due to the original injury and based on changes in the condition of the employee occurring subsequent to the original award * * *.' Similarly, the employee's right to compensation in the present proceeding is not barred by failure to file a formal claim with the Industrial Commissioner within one year after the injury. The employer had notice of the injury and filed a report of the injury with the...