Wise Coal & v. Roberts

• Decision Date: 14 January 1932
• Citation: 161 S.E. 911
• Court: Virginia Supreme Court
• Parties: WISE COAL &. COKE CO. et at. v. ROBERTS.

161 S.E. 911

WISE COAL &.COKE CO. et at.

v.ROBERTS.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

Error to State Industrial Commission.

Proceeding under the Workmen's Compensation Act by J. W. Roberts, claimant, opposed by the Wise Coal & Coke Company, employer, and the Ocean Accident & Guarantee Corporation, insurer. To review an award of additional compensation to claimant, employer and insurer bring error.

Reversed.

Argued before HOLT, EPES, HUDGINS, and BROWNING, JJ.¹

James H. Price and L C. Caldwell, both of Richmond, for plaintiffs in error.

Vernoy B. Tate, of Wise, for defendant in error.

HUDGINS, J.

The employer and the insurance carrier complain of an award of the Industrial Commission entered on June 10, 1931, allowing J. W. Roberts, the claimant, $12 a week for 131¹/₄ weeks for 75 per cent, loss of the use of the left leg, payment beginning as of November 26, 1923.

The first error assigned is that the claimant did not use reasonable diligence in filing his application for a hearing, and that because of the delay the appellants have been prejudiced.

It appears that the claimant was injured by an accident which occurred on October 28, 1923, that he and the employer agreed on a settlement, which was approved by the commission, and that he was paid in full the sum agreed on.

The petitioners admit that the statute fixes no limitations on the time in which a party may make application to review an award on the ground of change in condition of the injured party, other than the total number of weeks for which injury may be compensable, and that such time had not expired when the application was filed.

The petitioners contend that to permit the claimant to file such an application after a delay of nearly seven years opens the door for the perpetration of fraud upon both em ployers and carriers, because in this mechanical age accidents from various causes frequently occur, and an employee suffering an accident compensable under the statute may have a complete settlement for his then condition, may later terminate that employment, and even leave the United States, may subsequently suffer another injury entirely unconnected with his former employment, and claim his later disability was due to the first injury; thus placing upon the employer the responsibility of keeping in touch with and watching over each and every employee who receives an injury while in his employment, regardless of where such employee may subsequently go.

The reply to this contention is that the Workmen's Compensation Act (Code 1930, § 1887(1) et seq.) expresses the public policy of this state towards both the employer and the employee, and makes the particular industry liable in the first instance for any and all injuries to employees arising out of and in the course of that employment, and fixes compensation according to the extent of the disability resulting therefrom. No contract, rule, or regulation will relieve, in whole or in part, any employer of this responsibility, if such employment comes within the provisions of the act. The injured employee may sign a release in full, with the consent and approval of the commission, yet, if the degree of disability due to the accident subsequently increases and the claimant files an application so stating, such a release is no bar to recovery. See opinion by Judge Campbell in Old Dominion Land Co. v. Messick, 149 Va. 330, 141 S. E. 132.

While admitting that the statute fixes no limitations for filing such an application, the court is asked to hold as a matter of law that seven years is an unreasonable time; in other words, the court is asked to do what the Legislature has not seen fit to do, i. e., fix a time limit in which an application based on a change in condition must be filed. The petitioners realize that such a request to a court must be based upon more than trouble and difficulty in obtaining the proof, for they allege in their petition that this delay has prejudiced their rights. The evidence, however, does not sustain this contention.

The undisputed evidence shows that the claimant after the injury went back to work for the same employer and continued in the service of the company until 1930, and reported his condition to it on numerous occasions. There was time and opportunity for the employer to observe the claimant, and, if necessary, have him examined. No witnesses were called by the petitioners, not even the doctor who treated the claimant at the time of the injury, nor the officers or employees of the company with whom he talked fromtime to time about his condition, although the record shows that these witnesses were available. Under these circumstances, the petitioners have not shown that they have been prejudiced by the delay, i

The petitioners further ontend that by section 25 the claimant is barred from a hearing before the commission because the claim was not filed within a year from the time of the accident.

The filing of. an agreement in regard to compensation in accordance with section 57 (Code 1930, § 1887 (57) is res adjudicata of the fact that the employer and the employee came under the provisions of the act, that the injury resulted from an accident which arose out of and in the course of the employment, and that the commission had jurisdiction over the parties for the enforcement and regulation of the compensation due, or which might become due, for the injury; hence the limitation made in section 25 (Code, § 1887 (25) does not apply. U. S. Gas. Co. v. Smith, 34 Ga. App. 363, 129 S. E. 880; Gravitt v. Oas. Co., 158 Ga. 613, 123 S. E. 897; Lat-timore v. Lumbermen's Mutual Co., 35 Ga. App. 250, 133 S. E. 291; Donk Bros. v. Ind. Com., 325 111. 193, 156 N. E. 344; Franklin County Mining Co. v. Ind. Com., 322 I1L 555, 153 N. E. 608.

The next error assigned is that the evidence submitted is not sufficient to support the award.

While no formal pleadings are required in a case before the commission, still the application for a hearing should in an informal way apprise the opposite party of the basis, or ground, relied upon for relief. The claimant here stated in his application that he was claiming an award because he "had been continuously disabled from the accident sustained by him on October 28th, 1923." No objection was raised to the form of the application, and the parties seem to have proceeded under the provisions of section 47 (Code, § 1887 (47), which gives the commission authority to review an award on an application based on the ground of change in condition. The commission stated that "the whole question is narrowed down to the extent of the disability of the 1923 injury, " and found that as of that time the disability was 75 per cent, loss of the use of the left leg, and ordered payment to begin as of November 26, 1923.

This statement of the question at issue and the finding thereon ignores the fact that an agreed settlement approved by the commission has the force and effect of an award. Code, § 1887 (57). In the absence of fraud, duress, or other facts which would entitle the parties to invoke the aid of a court of equity for reformation of a contract, such an award is binding upon both parties, unless the statute provides otherwise.

Section 47 (Code, § 1887 (47) adds only one ground for the reopening of an award made by the commission,...