Utah Apex Mining Co. v. Industrial Commission of Utah

• Decision Date: 17 April 1931
• Docket Number: 5113
• Citation: 77 Utah 542,298 P. 381
• Court: Utah Supreme Court
• Parties: UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

298 P. 381

77 Utah 542

UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5113

Supreme Court of Utah

April 17, 1931

Original proceeding by Utah Apex Mining Company and another against the Industrial Commission of Utah and another to review an award of workmen's compensation.

AWARD AFFIRMED.

Bagley Judd & Ray, of Salt Lake City, for plaintiffs.

Geo. P Parker, Atty. Gen., and Willard Hanson, A. H. Hougaard, and Marl D. Gibson, all of Salt Lake City, for defendants.

ELIAS HANSEN, J. CHERRY, C. J., and FOLLAND, and EPHRAIM HANSON JJ., STRAUP, J. concurring.

OPINION

ELIAS HANSEN, J.

This is a proceeding to review an award of compensation made by the Industrial Commission of Utah in favor of John H. Butler, payable by the Utah Apex Mining Company, a corporation, and its insurance carrier, the AEtna Life Insurance Company, a corporation. The only question presented for review is whether or not the claim of John H. Butler for compensation is barred by the statute of limitations. This question was timely raised before the Industrial Commission and decided against the plaintiffs. The facts, so far as material to the question presented for determination, are as follows: John H. Butler was injured on March 10, 1927, by powder fumes and smoke while in the course of his employment with the Utah Apex Mining Company. The AEtna Life Insurance Company was the insurance carrier of the Utah Apex Mining Company, a corporation, subject to the Industrial or Workmen's Compensation Act. The plaintiffs paid Butler compensation from the date of his injury to and including September 10, 1927, when he resumed work. Between September 10, 1927, and March 25, 1928, Butler was not paid any compensation. On March 25, 1928, plaintiffs resumed payments of compensation and continued payments until July 14, 1928. On August 2, 1928, Butler filed with the Industrial Commission of Utah a formal written application for adjustment of his claim for compensation. On September 25, 1928, a hearing was had before the commission. On November 6, 1928, the commission made its decision awarding to Butler compensation "in the sum of $ 16 per week beginning July 15, 1928, all accrued payments to date to be paid in a lump sum and thereafter once every month until otherwise ordered by the commission." The decisions further provided "that said John H. Butler, applicant herein, report to Dr. M. M. Critchlow from time to time and whenever requested to do so by said Doctor, for observation and treatment if necessary. * * * The Industrial Commission of Utah retains jurisdiction over this case until all proceedings are had and all matters and things done therein to finally dispose of the same according to law."

The plaintiffs, in compliance with the order of the commission, paid compensation until March 3, 1929. On that date, upon the advice of Dr. Critchlow, Butler went to work in the coal mines of Carbon County, Utah, and plaintiffs ceased paying compensation. Mr. Butler worked until January 14, 1930, when he was forced to quit because of his disability. On March 15, 1930, Butler filed with the commission a written application for further compensation. On April 2, 1930, a hearing was had on the application. Thereafter, on October 11, 1930, the commission awarded Butler compensation "at the rate of $ 16 per week beginning January 14, 1930, all accrued sums to date to be paid in a lump sum and thereafter once every month until otherwise ordered by the commission."

The plaintiffs seek to have the award which was granted on October 11, 1930, annulled because more than one year elapsed between March 3, 1929, the date when they paid Butler the last compensation, and March 15, 1930, the date when Butler filed his application for additional compensation. That is the sole question presented for review. No claim is made that the original application was not filed in time.

In their brief plaintiffs call our attention to the following cases: Utah Consolidated Mining Co. v Industrial Commission of Utah, 57 Utah 279, 194 P. 657, 16 A.L.R. 458, and Maryland Casualty Co. v. Industrial Commission of Utah (Utah) 74 Utah 170, 278 P. 60. In the case of Utah Consolidated Mining Co. v. Industrial Commission of Utah, this court held that, "although the Utah Industrial Act fixes no limitation within which a proceeding for compensation must be commenced, such a proceeding for compensation must be commenced, such a proceeding must be commenced within one year under the general limitation statute; Comp. Laws 1917, § 6468, as to liability created by statute, regardless of whether the proceeding be denominated an action or a special proceeding of a civil nature, under section 6492." The language just quoted is the syllabus of that case and correctly reflects the law announced in the opinion. In that case no proceeding whatever was begun by the applicant for compensation within one year after he was injured, and so far as appears no compensation was paid to him. The case of Maryland Casualty Co. v. Industrial Commission of Utah, supra, is to the same effect as the other case cited. In this case Butler filed his application for compensation, the commission awarded him compensation, and plaintiffs paid him compensation before it is claimed the statute of limitations began to run. Under the facts and circumstances in the instant case the law announced in the Utah Consolidated Mining Co. Case and the Maryland Casualty Co. Case, supra, can be of but...