Therrien v. Waumbec Mills, Inc.

• Decision Date: 01 July 1954
• Citation: 99 N.H. 137,106 A.2d 565
• Parties: THERRIEN v. WAUMBEC MILLS, Inc. et al.
• Court: New Hampshire Supreme Court

Page 565

106 A.2d 565

99 N.H. 137

THERRIEN v.WAUMBEC MILLS, Inc. et al.

Supreme Court of New Hampshire.

Argued June 1, 1954.

Decided July 1, 1954.

Maurice A. Broderick, Manchester, for plaintiff.

Warren, Wiggin, Sundeen & Nassikas, Manchester, and Hedley G. Pingree, Exeter, for defendants.

BLANDIN, Justice.

The case hinges on whether the parties made an agreement to settle the plaintiff's claim within the meaning of Laws 1947, c. 266, § 34, and whether such an agreement is subject to the provisions of section 38 of the same chapter.The material portions of these sections read as follows: Section 34.'Agreements.If an employer and an injured employee enter into an agreement in regard to compensation payable under the provisions of this chapter, a memorandum thereof shall be filed with said commissioner of labor; and, if approved by him, such agreement, subject to modification as provided in section 38 shall be enforceable as provided in section 40.Said commissioner shall approve such an agreement only when the terms thereof conform to the provisions of this chapter.'Section 38.'Modification of Awards and Agreements; Effect.Upon application of any party * * * upon the ground of change in the conditions, mistake as to nature or extent of injury * * *, the superior court may, not later than one year after the date of the last payment fixed by the award, review said award, and upon such review, may make an order ending, diminishing or increasing the compensation previously awarded * * *.'

The question whether there was an agreement in the first instance depends on the intention of the parties as evinced by all the circumstances, including their actions.Maloney v. Boston Development Corporation, 98 N.H. 78, 95 A.2d 129.The Trial Court has found that they did make such an agreement.It is undisputed that a memorandum was signed by the plaintiff and an agent acting on behalf of the defendant on December 5, 1947.This memorandum was on a form provided by the Bureau of Labor and was filed with and approved by the Labor Commissioner as required by section 34supra.It states at the top that it is an 'Agreement for Temporary Total or Partial Disability Compensation.'It recites the fact that the parties'have reached an agreement in regard to compensation' and also that 'This agreement * * * may be subject to review by the superior court as provided in Section 38 of the Law.'The weekly rate of compensation and the time as of which payments were to commence were fixed, together with a stipulation that payments were to continue until terminated 'in accordance with * * * the Workman's Compensation Law * * *'

Five days later on December 10th the parties executed another memorandum, also on a form provided by the Bureau of Labor and filed with and approved by the Labor Commissioner as required by section 34, supra.This form is entitled, 'Final Report and Receipt for Compensation For Industrial Accident to Labor Commissioner.'It further states in bold print: 'Read Carefully before Signing.This is a Final Settlement Receipt.Signing It Means that Compensation Payments Cease.'It recites that the stated sum, $148.98, received by the plaintiff in accordance with the weekly payments previously agreed upon, is the 'final payment required for compensation due Maud[e] Therrien * * * under compensation agreement date December 5, 1947,' and that it is 'subject to review by the superior court as provided in Section 38 of the Law.'

The memoranda dated December 5 and December 10, 1947 were, without objection, identified by the Labor Commissioner, who was called by the plaintiff as a witness, as an 'agreement' and 'final agreement' respectively.The word 'agreement' as used in section 34 interpreted as it must be in its usual sense, R.L. c. 7, § 2, seems to cover the understanding which the Court has found the parties reached.SeeStandard Acc. Insurance Company v. Cloutier, 92 N.H. 449, 32 A.2d 684, 147 A.L.R. 626;3 C.J.S., Agreement, p. 356.It is significant that the heading under section 38 is 'Modification of Awards and Agreements', and that section 34 specifically states that agreements made pursuant to it are subject to modification under section 38, thus contemplating just such a situation as arose here with the amount of weekly payments being first fixed, followed by a final settlement.The two...