110 P.2d 746 | Kan. | 1941
The opinion of the court was delivered by
This was a workmen’s compensation case. The appeal is from the judgment of the district court allowing additional compensation to claimant on his petition for review and modification of an award previously made. Appellant contends the petition for review and modification was not filed or considered within the time authorized by statute. The pertinent facts bearing on that
On July 29 counsel for the claimant dictated a petition for review and modification of the award. This was mailed to the compensation commission, where it was received and filed on August 1, 1939. On July 31, 1939, the employer mailed its check to claimant for the final payment, due August 3. This check was received by claimant and cashed on August 1,1939. This petition for review and modification was heard by the compensation commissioner on October 31 and November 28, 1939, and the decision of the commissioner denying claimant further compensation was rendered on December 11, 1939. From this the claimant appealed to the district court, and on August 8, 1940, the court made an award for total disability from August 3, 1939, to August 31 and for partial disability from August 31 to November 30. From these findings and decree the respondent has appealed.
The pertinent portion of the statute (G. S. 1935, 44-528) pertaining to a petition for review and modification of the previous award reads:
“At any time before but not after the final payment has been made under or pursuant to any award, ... it may be reviewed by the commission upon good cause shown upon the application of either party, and . . . the commission shall hear all competent evidence offered and if it shall find that the award ... is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award . . .”
The most favorable position for the appellee is that the final payment was accepted at the same time the petition for review and modification was filed. Both events were on the same day, there was no attempt to show which was actually first in time (State, ex rel., v. Bone, 125 Kan. 818, 834, 835, 266 Pac. 85), hence it cannot
In view of the conclusion reached it is not necessary to discuss another question argued in appellant’s brief. The judgment of the trial court will be reversed with directions to render judgment for the appellant here. It is so ordered.