Telesphore Bosquet v. Howe Scale Company And the Royal Indemnity Co.

• Decision Date: 14 February 1923
• Citation: 120 A. 171,96 Vt. 364
• Parties: TELESPHORE BOSQUET v. HOWE SCALE COMPANY AND THE ROYAL INDEMNITY COMPANY
• Court: Vermont Supreme Court

120 A. 171

96 Vt. 364

TELESPHORE BOSQUET v. HOWE SCALE COMPANY AND THE ROYAL INDEMNITY COMPANY

Supreme Court of Vermont

February 14, 1923

October Term, 1922.

APPEAL by defendants to Supreme Court, Rutland County, from the award of the commissioner of industries on a petition to review a previous settlement of compensation for injury to an employee of the defendant scale company. The opinion states the case.

Award vacated and petition dismissed with costs in this Court. Let the result be certified to the commissioner of industries.

Walter S. Fenton for the defendants.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

This is an appeal from the award of the commissioner of industries on a petition under G. L. 5805, to review a previous settlement of compensation under the Workmen's Compensation Act. On July 17, 1917, the petitioner, an employee of the Scale Company, was severely injured by an accident arising out of and in the course of his employment from which temporary total disability immediately followed. September 12, 1917, he entered into an agreement in regard to compensation, a memorandum of which was filed in the office of the commissioner of industries and duly approved. The weekly wage at the time of injury and weekly compensation during disability were therein agreed upon. January 8, 1918 the petitioner signed a settlement receipt which was duly filed in the office of the commissioner. Therein he in effect acknowledged receipt of certain sums in final settlement of compensation for his injuries, subject to review and approval by the commissioner of industries. This settlement receipt was approved by the commissioner February 4, 1918. The petitioner returned to his work on January 6, 1918, and worked practically continuously from that time until May 31, 1921. He ceased work at that time, not by reason of his injury, but solely on account of business depression and its effect upon the manufacturing plant of the defendant Scale Company. No claim for compensation either for recurrence of disability or for specific injury was made until some time later.

The petition on which the proceedings appealed from is based was filed with the commissioner November 21, 1921. It alleges a change in conditions and asks that "the agreement or award previously made be reviewed pursuant to sections 5801 and 5805 of the General Laws, and that an order be made increasing or continuing compensation previously awarded or agreed upon." The defendants seasonably objected that the statute does not warrant re-establishing compensation after the termination of the period originally fixed by the award or agreement. The commissioner rejected this claim, holding that G. L. 5805 authorizes a review at any time upon the ground of a change in the conditions. Evidence was received on which the commissioner found that there had been a change in the conditions warranting a review of the case and the making of an order for further compensation, in that it then appeared that there had been a permanent loss of function of the leg which was not apparent at the time the agreement was entered into, nor when the settlement receipt was signed. He found that such permanent loss of function entitled the petitioner to compensation for 102 weeks, and that the correct rate of compensation was less than that agreed upon in the settlement, making a total overpayment of $ 91.08. As the period of weekly payments under the order had expired, the defendants were ordered to pay the petitioner a lump sum representing the total additional compensation, after deducting the amount overpaid under the settlement agreement.

The principal question of law certified up for review on appeal is whether in the circumstances detailed the commissioner was without jurisdiction under G. L. 5805 to make an award (1) re-establishing compensation for disability, or (2) ordering compensation payments for a specific permanent injury resulting from the original accident if said permanent injury (a) existed at the time the original agreement was entered into, or (b) existed at the time the petitioner returned to his work and the settlement receipt was filed, or (c) resulted at some considerable time after the filing of said settlement receipt, being first brought to the attention of the commissioner nearly three years and five months thereafter.

The authority of the commissioner to entertain this petition and make the order objected to depends upon the construction to be given G. L. 5805 which provides: "Upon his own motion or upon the application of any party in interest upon the ground of a change in the conditions, said commissioner may at any time review any award, and on such review may make an order ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter and shall state his conclusions of fact and rulings of law and immediately send to the parties a copy of the award. Such a review shall not affect such award as regards any money already paid." Such an agreement in regard to compensation as that entered into between the parties here, when a memorandum thereof is filed with the commissioner and approved by him, is subject to modification as provided above. G. L. 5801.

The original Workmen's Compensation Act (No. 164, Acts of 1915) had as its basis the uniform act recommended by the board of commissioners for the promotion of uniform legislation, and this in turn was modeled after the earlier English Workmen's Compensation Act. Section 34 of our act was identical with section 36 of the uniform act and read, "may at any time, but not oftener than once in six months, review," etc. The limiting phrase was later amended out. No. 173, Acts of 1917, § 6. In other respects the authority of the commissioner to review and modify awards and agreements is essentially the same as under the original act.

The proceedings to administer the Workmen's Compensation Act being wholly statutory, on familiar principles the commissioner's authority is limited to that granted by the act. He possesses only such powers as are conferred upon him by express legislative grant, or such as arise therefrom by implication as incidental and necessary to the full exercise of the powers granted. Conner's Case, 121 Me. 37, 115 A. 520; Levangie's Case, 228 Mass. 213, 117 N.E. 200; Sterling's Case, 233 Mass. 485, 124 N.E. 286. See, also, Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536; Bacon v. B. & M. R. Co., 83 Vt. 421, 76 A. 128, where the principle is applied. The Act is to be liberally construed (Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638, L.R.A. 1918F, 173; Brown v. Bristol Last Block Co., 94 Vt. 123, 108 A. 922); but the court cannot by construction create a liability, or confer jurisdiction. In matters touching the jurisdiction of the commissioner, authority cannot be extended beyond the powers expressly conferred or arising therefrom by necessary implication. Thus, we held in Petraska v. National Acme Co., supra, in effect, that the making of a claim for compensation within the time fixed by the act was jurisdictional, and that the commissioner was without authority to make an award unless the jurisdictional facts affirmatively appeared.

The application under G. L. 5805 to modify an agreement or award is not a new proceeding, but is based upon a jurisdiction acquired through the original proceeding, either on application for an award of compensation under G. L. 5802, or, as in the case at bar, on the filing of a memorandum of agreement in regard to compensation pursuant to G. L. 5801. It should be observed that agreements between the parties respecting compensation are favored. Application to the commissioner for hearing and award in the premises is conditioned upon failure of the parties to agree. G. L. 5802. To prevent over-reaching and protect the employee against improvident agreements, they are required to be made subject to the approval of the commissioner, which can be given only when the terms of the agreement conform to the provisions of the Act. G. L. 5801.

It sufficiently appears that the commissioner had original jurisdiction in the premises which leaves for consideration whether in the circumstances the power of review had terminated; in other words, whether under our statute there is a continuing jurisdiction for the purpose of review notwithstanding there has been a final settlement of compensation under the agreement. In effect the question is the same as it would be in case of an award of compensation which had been fully complied with. The original agreement approved by the commissioner, being for weekly compensation for an indefinite time, was equivalent to an award of such compensation during disability; and the settlement agreement, likewise approved by the commissioner, was equivalent to an order...