Utah Delaware Mining Co. v. Industrial Commission

• Citation: 289 P. 94,76 Utah 187
• Decision Date: 11 June 1930
• Docket Number: 4959
• Court: Supreme Court of Utah
• Parties: UTAH DELAWARE MIN. CO. v. INDUSTRIAL COMMISSION et al

289 P. 94

76 Utah 187

UTAH DELAWARE MIN. CO. v. INDUSTRIAL COMMISSION et al

No. 4959

Supreme Court of Utah

June 11, 1930

Proceeding by the Utah Delaware Mining Company against the Industrial Commission of Utah and another, to review proceedings had before the Industrial Commission in which compensation was awarded to an employee for injuries.

AWARD AFFIRMED.

Van Cott, Riter & Farnsworth, of Salt Lake City, for plaintiff.

Geo. P Parker, Attorney General, and M. Logan Rich, Deputy Attorney General, for defendants.

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

OPINION

STRAUP, J.

The plaintiff, the Utah Delaware Mining Company, seeks a review of proceedings had before the Industrial Commission in which compensation was awarded to one of its employees for alleged injuries sustained by him in the course of his employment. It is charged that the evidence is insufficient to sustain the award, especially in the particulars that the disabilities complained of and for which compensation was awarded were the result of the alleged injury; that the application for compensation was not filed until more than one year after the accident and hence was barred by the statute of limitations; and that the commission after a hearing and making findings changed them without notice to the plaintiff and without giving it an opportunity to be heard with respect thereto.

It is admitted that the employee, Plumlee, as a miner was in the employ of the mining company, and while engaged at his work in its mine, a rock and cave-in, on January 16, 1927, fell from the top of a stope and struck him on his back and on the right side resulting in injuries. The injury and as described by the attending physician in a report made by him, and of which there is no dispute, is a "fracture of right transverse process 4th lumbar vertebra. Moderate amount of hypertrophi arthritis throughout spine. Extensive abrasions and contusions of whole lumbar region."

Under our Workmen's Compensation Act (Comp. Laws Utah 1917, § 3095), there is created what is known as the state insurance fund for the purpose of insuring employers by the state against liability for compensation under the act, which fund is applicable to the payment of loss sustained on account of such insurance and to the payment of compensation. The state treasurer is the custodian of the fund which is administered by the Industrial Commission, who is given authority to make contracts of insurance relating to the state insurance fund and as by the act provided. Ban & Kariya Co. et al. v. Industrial Commission, 67 Utah 301, 247 P. 490, we held that the insurance fund is not itself a corporation nor any other legal entity; that it is but an arm or department of the machinery set up by the Workmen's Compensation Act, the administration of which is under the Industrial Commission and under its control and management. The mining company was insured by and through the state insurance fund under and in pursuance of a contract made by it with the Industrial Commission or under its discretion and authority.

The attending physician made his report of the accident and injury on a printed blank furnished for that purpose to "The State Insurance Fund (The Industrial Commission of Utah), Surgical Report," on January 28, 1927, describing the injury as heretofore stated. Likewise the mining company on the same day, January 28, 1927, also made a report, on a printed blank furnished for such purpose, to "The Industrial Commission of Utah--First Report of Injury," of the accident and injury and as described by the physician in his report, stating the probable duration of the disability to be two months and stating other matters required to be stated in such a report. That report was received by the state insurance fund January 29, 1927. On February 11, 1927, the employee, on a printed blank furnished for the purpose, made a written report signed by him, to "The State Insurance Fund of Utah, The Industrial Commission, Workman's Claim for Compensation," in which all necessary statements are made showing the name of the employer, the name of the employee, the place and time of injury, the manner in which it was sustained, the part of the body injured--on the "back, hip, leg" from "a cave-in while I was at work"--the name of the attending physician, the employment by the day at seven days a week at the rate of $ 5.25 a day, and that, "in accordance with above facts claim is hereby made for the benefits due under the compensation act." Such report was received by the state insurance fund February 11, 1927. On February 15, 1927, on a printed blank furnished for the purpose, the heading of which is, "Employer's Supplemental or Final Report of Injury, The Industrial Commission of Utah," the mining company made a further written report, giving the name of the employer, the name of the employee, the time and place of injury, and stating that the employee was able to return to work February 14, 1927, which report was received by the state insurance fund February 15, 1927. The mining company on March 29, 1927, filed a further "Employer's Supplemental or Final Report of Injury, The State Insurance Fund, The Industrial Commission of Utah," in which it again reported the date of the accident, the name of the employee, that he was absent 31 days, was paid compensation of $ 64, and that the services of the physician and hospital expenses also had been paid amounting to $ 73.50.

On June 19, 1929, the employee on a printed blank furnished for such purpose, filed with the Industrial Commission a regular written "Application for Adjustment of Claim," in which the time, place, and cause of the injury were stated, that he was "Hurt in back and right side over kidney" by a cave-in, and in which all necessary jurisdictional facts entitling him to compensation were stated, and, among other things, "I have suffered with pain and soreness in my right side and back since I was hurt and it never hurt me before I was hurt and I have not been well or able to work steady, been going to the Dr. off and on since Jan. 16, 1927," and that, "There is a question with the Dr. if this sickness is from the injury or not." In his application he made a claim of compensation of $ 16 a week from January 16, 1927, until he was able to work. Written notice was given the mining company and the claims adjuster of the state insurance fund of the filing of the application and a copy thereof to each and that the hearing was set for July 1, 1929. On that day the applicant appeared in person without counsel, the claims adjuster for the state insurance fund, but no answer or appearance of any kind was made by the mining company. Testimony was given by the applicant, his wife, and his father-in-law, and by the attending physician. A report of the mining company also was put in evidence showing the number of days the applicant worked for the mining company after the injury from February, 1927, to April 13, 1929, and the number of days during such period he was absent. At the conclusion of the evidence, the commission, on August 9, 1929, made findings and conclusions and ordered an award of compensation to be paid by the mining company and the state insurance fund of $ 16 a week during "the temporary total disability" of the applicant and the payment of medical and hospital expenses. Notice was given of the decision to the mining company and the state insurance fund. The mining company in due time and on August 27, 1929, filed a petition with the commission for a rehearing, on the ground of insufficiency of the evidence to support the award and that the findings as made were contrary to the evidence. On September 6, 1929, the commission granted a rehearing "to afford the commission an opportunity to revise its findings to conform to the evidence heretofore presented but not for the purpose of introducing any further or additional testimony." In the petition for rehearing no ground or request was stated to give further or additional evidence. The matter of the rehearing was set for September 14, 1929, and all parties notified. At that time the applicant again appeared in person without counsel, the claims adjuster for the insurance fund, and counsel for the mining company. At that hearing the commission stated the prior proceedings had in the cause, and, among other things, stated that the commission was of the opinion it had failed to make the findings sufficiently definite and had granted a rehearing in order that the commission on the evidence theretofore adduced might make the findings more specific and certain. Apparently no objection was made on behalf of the claims adjuster for the state insurance fund. The mining company did not even then offer or ask to give further or additional evidence, nor did it make any objection to the contemplated action to be taken by the commission, except counsel for the mining company asked that the record show that the application for compensation filed with the industrial commission "bears the file mark of June 19, 1929, which was more than a year after the time of the accident," and then for the first time served and filed or in any manner interposed a plea or claim of the statute of limitations. In reply to the plea, the commission stated:

"Let the record show that under date of February 11, 1927, The Industrial Commission of Utah received an application signed by Lee Plumlee (the applicant) making claim for workman's compensation and containing the date of the injury and all necessary data required by said application.

"Mr. Van Cott (Counsel for the mining company): I would like to have the record show that that can only be considered an application by considering the State Insurance...