165 P.2d 595 | Kan. | 1946
The opinion of the court was delivered by
In a workmen’s compensation case the district court sustained the findings of the commissioner and denied recovery to the claimant on his petition for a review of an award because before the date of the hearing by the commissioner final payment had been
The original award was made February 15, 1944, and provided for the payment in a lump sum of the amount due as of February 10, 1944, and that the respondent should pay an additional $900 at the rate of $18 each week for fifty weeks thereafter. The period during which payments should be made expired January 26, 1945. The petition for review was filed January 6, 1945. On January 8 the commissioner mailed a notice to respondent to the effect that the petition would be heard February 16. On January 14 the respondent mailed to claimant its check for the balance due under the award. Claimant cashed the check on January 19. On January 25 respondent filed a motion to dismiss the petition for review on the grounds that claimant had received all payments under the award, including the final payment, and that the commissioner, therefore, had no jurisdiction to hear the petition for review. The claimant filed an answer to the motion, setting forth therein various facts upon which he relied, which will be considered later herein, and tendered a return of the final payment. It will be noted that the petition for review was filed before final payment was made but that the hearing was set after the payment was made to and accepted by the claimant.
Nothing was said in the award relative to the manner in which the payments should be made except that they should be “paid at the rate of $18 per week for fifty weeks, thereafter.” The amount due to the claimant in a lump sum under the provisions of the award was paid by the issuance of a cheek for the amount of $671.14. The check was made payable to the claimant and his attorneys and was delivered to one of his attorneys on or about March 1, 1944, together with another check in the amount of $33.42. There was no data on the larger check indicating the time covered by it but the smaller check was dated February 25, 1944, and had a notation on its stub reading as follows: “2-27-44 to 3-10-44.” Claimant endorsed the checks over to his attorneys and received his proportion of the proceeds thereof. The notation on the stub of the small check is somewhat significant. Since the check was dated February 25 and delivered on or about March 1, it clearly appears that at the inception of the making of the periodical payments the respond
Subsequent to the issuance of the first three checks the respondent mailed to claimant a series of checks with stubs attached. Two checks were mailed each month. The dates on which the checks were issued during the period of approximately eleven months varied somewhat according to the time when the pay-roll records were made up but the stubs attached thereto, with one exception, carried notations showing that compensation was being paid to either the 10th or the 26th of the respective months involved. On or about December 27, 1944, respondent issued its check as of such date and mailed the same to the claimant on or about the 29th of December, 1944. Attached to said check was the customary stub and upon the same was the notation “12-27-44 to 1-10-45.” Claimant cashed this check on or about January 2, 1945. Thus, it will be seen that the claimant, if he had paid any attention whatever to the notations on the stubs, was advised thereby that compensation had been paid to the 10th of January, 1945. Since he cashed the check on or about January 2, 1945, it also follows that the claimant probably knew on January 6, 1945, at which time he filed his petition to review the award, that he had been paid compensation in advance of such date, to wit, until' January 10, 1945. Consequently, the only compensation which could become due to the claimant thereafter was that accruing during the period beginning January 11th and expiring January 26th. On January 14, 1945, respondent issued and mailed to claimant the last check in the amount of $38.62. The stub which was attached to said check was on the customary form but did not have any notation thereon in the usual place showing the period of compensation covered by the same. In explanation of its omission the treasurer of the respondent stated that he did not show the period covered by the last check because the amount thereof was adjusted in order to make the amount correrspond with the balance due on the total amount of the award and that he omitted to put the date on it to which compensation was paid. He also testified that it was customary for the company to
The applicable statute, G. S. 1935, 44-528, reads as follows:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, . . .” (Emphasis supplied.)
A recent case, wherein this court directly construed the above statute, is that of Bailey v. Shelly Oil Co., 153 Kan. 378, 110 P. 2d 746. In the cited case the period during which payments should be made for partial temporary disability expired August 3, 1939. On August 1, 1939, a petition to review the award was filed. On July 31, the employer mailed its check to claimant for the final payment. He received it and cashed it on August 1. The petition for review of the award was heard by the commissioner on October 31 and on November 28 the commissioner denied the claimant further compensation. Claimant appealed to the district court and the court made an award for total disability beginning August 3, 1939, and expiring August 31 and for partial disability thereafter. On appeal to this court it was contended that the record in the cited case disclosed that the original award was not reviewed by the commissioner before final payment thereof. In such case this court held as follows:
“The point is well taken if the wording of the statute is to be followed. On behalf of appellee it is argued that if the petition for review and modification is filed with the commission before final payment the hearing may be had on the petition after final payment. No authority is cited in support of that view and our own research discloses none. . . . When final payment was accepted before the hearing on the petition the holding has been uniform that the commission was without authority to conduct the hearing and modify the previous award. (See Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; Farr v. Mid-Continent Lead & Zinc Co., 151 Kan. 51, 98 P. 2d 437; Jennings v. Aylward Production Co., 151 Kan. 142, 98 P. 2d 454, and cases cited in those opinions.) The view that the hearing and modification,must be*716 before final payment is made, conforms to the statute. Its language is clear on that point. The rights of the parties to have a review and modification of a previous award are governed by statute; the court has no authority to say such a review and modification may be had under circumstances in addition to those named in the statute.” (p. 380.)
Prior to the general revision of the compensation act in 1927 the words “but not after” were not contained in section 44-528. Even before such words were inserted this court held that the hearing for a modification Sf an award must occur before the making of final payment. With knowledge of such holding before it, all that the legislature did in connection with the general revision was to emphasize our construction of the statute by inserting the phrase “but not after.” Nothing was added which in any manner modified or created any exception to the plain and clear language of the statute. In such circumstances this court has no authority to read into the statute a meaning contrary to the amplified intent of the legislature and the rule of liberal interpretation of the compensation act will not permit us to exercise judicial ingenuity or to stretch the elasticity of language to the point of disregarding the simple unclouded provision of the statute. As was said in Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328—“If final payment has been made, a complete finality is thereby reached, and no further proceedings can be entertained by the compensation commission.” (p. 446.) Whenever a claimant accepts final payment of an award before the date set for hearing of a petition for review and modification he thereby divests the commission of any authority to review the award. The present case is an unquestionable example of an award as distinguished from an agreement, release of liability, or final receipt and as a consequence the provisions of G. S. 1935, 44-527, are not before us for consideration. Since it is our conclusion that the commissioner had no authority to consider the petition to review the award this opinion could be closed consistently at this point. However, counsel for claimant urge us to deliberate certain other elements which they contend are germane to jurisdiction and, consequently, we will examine such contentions.
Claimant’s answer to respondent’s motion to dismiss for want of jurisdiction set forth in substance that the claimant had been advised that his physical and mental condition had shown no improvement; that he still remained disabled from work; that he was examined by certain doctors who said that he was suffering
Claimant’s counsel assert that the evidence introduced in support of the foregoing answer establishes that there was no intention on the part of the respondent to tender final payment of compensation. The evidence of respondent’s treasurer herein referred to negatives such a contention. At this point it may be prudent to note that the findings of the commissioner on any questions of fact based upon contradictory evidence are binding upon this court because the district court confirmed the findings of the commissioner. The journal entry to such effect reads as follows:
“. . . . the court enters its judgment herein, affirming and approving the award of the Commissioner made upon the hearing on Claimant’s Petition for Review, said judgment as contained in the written opinion of the court being in words and figures, as follows:
“ ‘I have carefully considered all evidence presented to me in the above entitled case, including exhibits and transcripts furnished by the Workmen’s Compensation Commissioner, and am convinced that the holding of the examiner is correct.’ ”
Following such statement the journal entry reviews certain evidence and concludes that the petition for review was properly dismissed for the reason that the commission was without jurisdiction to grant further relief to the claimant. It must be conceded,
Counsel for claimant further contend, however, that the evidence is also undisputed that the claimant did not intend to accept final compensation; Obviously the provision of the statute would be entirely without substance and effect if a claimant could circumvent and avoid it by merely taking the stand and testifying that he did not intend to accept payment. The record is quite clear that counsel for claimant did not intend for him to accept payment because they had carefully cautioned the claimant against so doing and had written a letter to counsel for the respondent which clearly indicated that his counsel intended that the claimant would not accept the
Claimant’s counsel assert that since the commissioner had jurisdiction of the subject matter of the controversy and of the parties before the time of the making of the final payment, the commissioner retained jurisdiction for the purpose of considering the foregoing circumstances under which the final payment was made. Even if such an assertion be sound, the record in the present case would not
Counsel for claimant also contend vigorously that the respondent, as a matter of law, did not have a right to tender final payment in advance of the due date and thereby shorten the period in which the petition to review the award could be heard. The argument is advanced that if such be permissible, it is equivalent to the allowance of a payment in a lump sum without the approval of the compensation commissioner in violation of G. S. 1935, 44-525, and contrary to G. S. 1935, 44-512, which provides that the payments shall be made at the same time, place, and in the same manner as wages of the workman were payable at the time of the accident subject to modification by the commissioner. In support of such contention claimant’s counsel cite City of Hapeville v. Preston, 67 Ga. App. 350, 20 S. E. 2d 202; Lumbermen’s Mutual Casualty Co. v. McIntyre, 67 Ga. App. 666, 21 S. E. 2d 446; and Creighton v. Continental Co., 155 Pa. Super. 165, 38 A. 2d 337. Examination of the cited cases discloses that they are authority for rules to the effect that the purpose of compensation acts is to provide for compensation in lieu of wages and that it is the intention of such acts that the compensation should be paid as wages in such manner that it will not be dissipated by improvident expenditure or loss thereof by the workman, that he thereby may become dependent upon charity for support during the period of disability and that consequently an employer has no right by voluntarily anticipating payments to an employee, to shorten the period of the employer’s liability. It is also contended that any payments made in advance are merely voluntary overpayments and that the employer is only entitled to credit for payments to an injured workman to the extent that such payments were due at the time of the making thereof (citing McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39, and Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102).
In the present case the commissioner found that at a conference between claimant’s attorneys and respondent’s attorneys it was agreed that the “payments, instead of being made weekly would be made on the regular pay days of the company, semimonthly on the 10th and 26th.” Claimant’s counsel contend there is no evidence in the record to justify such a finding. We fail to find any direct testi
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission . . (Emphasis supplied.)
This court cannot say as a matter of law in this case that there was no evidence to substantiate the slight modification of the award. The payment was made pursuant to such modification. This court does not disagree necessarily with the general principles followed in the cases cited by claimant’s counsel but they are not controlling in the present case because the facts do not justify their application.
The final contention on behalf of claimant is that the commissioner once having acquired jurisdiction to hear the petition for review and having fixed a date for hearing, retains jurisdiction and does not lose it by the subsequent tender and acceptance of the full amount payable under the original award. Such a contention is directly contrary to the construction which this court has given consistently to the statute and for the reasons herein set forth does not require further discussion. Diligent counsel for claimant also raise other points not discussed at length herein. Consideration has been
The judgment of the district court is affirmed.