123 Kan. 570 | Kan. | 1927
The opinion of the court was delivered by
In this proceeding Marquis De Millsap recovered compensation as a workman upon a claim that is conceded to be governed by the workmen’s compensation act. On the claim for compensation an arbitrator was agreed upon* who tried out the questions submitted and upon the testimony found that De Millsap was injured in the defendant’s mine when another employee working in the mine threw a piece of steel about ten feet long, weighing approximately ten pounds, so that the blunt end of the steel struck the workman’s right leg about seven inches above the knee over the elastus external muscle; that as a result of the injury the nerves of the right leg became involved and the muscles of the thigh rigid and contracted; that the knee became slightly flexed or drawn so that the plaintiff could not extend it and was limited more than one-fourth in contracting it and approximately one-half in extending the leg; that the leg is painful and tender on pressure and the workman is unable to sit in one position more than a few minutes at one time because of cramping and pain, and further that it has
It will be observed that there has been an arbitration and an award of compensation ,in a lump sum prior to the time the award was made and further that the remainder was required to be paid in installments at the rate of $15 per week. The defendant contends that it is entitled to make a tender of payment and to secure a release by paying eighty per cent of the unpaid installments. It is insisted that this course was open to an employer at any time' after six months from the time of the injury. It appears that more than six months had elapsed between the time of the injury and the time in which the eighty per cent tender was made, but it also is shown that it was made less_than six months after the award. The award was made by the arbitrator on July 26, 1926, and the tender was made October 26, 1926. A' consideration of the tender and application for release was denied on November 29, 1926, and before that ruling was made the plaintiff had asked for a review and modification of the award. Was the defendant entitled to a release by payment in a lump sum of eighty per cent of the unpaid installments? The statute provides:
“Where payments under an award have been made for not less than six months, the liability under such award may be redeemed by the employer at his option by the payment to the workman of a lump sum equal to eighty per cent of the amount, of payments due and unpaid and prospectively due under the award, such amount to be determined by agreement, or, in default thereof, upon application of either party, upon notice to the other party by the judge of the district court having jurisdiction. Upon paying such amount, the employer shall be discharged of and from all further liability under said award.” (R. S. 44-531.)
The statute indicates that the award is the point from which time is to be reckoned in making a redemption. The employer has the option to redeem from the liability where he has made payments for six months under the award. The extent of the liability is not determined until the award is made. The statute provides that the award must be in writing, must specify the amount due to the workman up
“What effect an injury will have on capacity of work is necessarily a matter of prediction in most cases. The arbitrator’s prediction may not accord with the facts disclosed by lapse of time. Capacity may increase or may diminish beyond what the award contemplated, and compensation should be adjusted accordingly. Therefore,, review and modification of the award are provided for at the instance of either employer or employee. A modified award is still likely to rest on prediction, and if the prediction should prove to be wide of the truth, further adjustment to accord with the facts ought to be made.” (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 247, 237 Pac. 1056.)
Such a review.and modification may be made at any time before the final payment has been made. The right of redemption cannot be exercised by the employer until after payments have been made for a period of six months under the award. Payments made prior to the award cannot be said to have been made under and in pursuance of the award.
The judgment of the district court is affirmed.