264 N.W. 438 | Minn. | 1936
Lead Opinion
The facts are these: Respondent was injured in an accident arising out of and in the course of his employment on September 28, 1931, and relators voluntarily paid him compensation and medical benefits up to April 17, 1933, but on May 1, 1933, gave notice of discontinuance as of April 17. On May 16, 1933, the industrial commission gave notice of hearing on the proposed discontinuance for June 22. The hearing was not begun until July 25, 1933, before Referee Reynolds, who thereafter, on September 16, 1933, filed *121 his decision wherein he found: "That as a result of said accident and injury the employe herein was totally disabled up to and including the 24th day of July, 1933," and then determined that he was entitled to compensation against relators at the rate of $16.80 per week from and after September 28, 1931, until the 17th of April, 1933, or the sum of $1,380.80 which had been paid, and in addition thereto compensation from and after that date until July 24, 1933, a period of 14 weeks, or the sum of $235.20; this in addition to $1,098.10 paid by relators for his medical and hospital care. No appeal was taken from the referee's decision. In July, 1934, respondent petitioned the commission to vacate Referee Reynolds' award, filed September 16, 1933, on the ground, among others, that there had been a change in the physical condition of respondent so that he is unable to work. The commission granted the petition and filed an order on November 21, 1934, vacating and setting aside the finding and award of Referee Reynolds in its entirety and referring the matter to Referee Schaefer to take additional testimony. When the matter came before Referee Schaefer on April 9, 1935, relators objected that the referee and commission were without jurisdiction and moved to dismiss and to exclude any evidence. The objections and motions were overruled and exceptions taken by relators. Later relators moved the commission to vacate its order of November 21, 1934, which was denied by order dated May 20, 1935. Certiorari issued June 13, 1935.
Respondent's motion to quash the writ because not issued within 30 days after the filing of the order of November 21, 1934, must be denied. The only question intended to be raised by relators is the jurisdiction of the commission to vacate the decision of Referee Reynolds, filed September 16, 1933, the contention being that tile jurisdiction of the commission over the subject matter of compensation for this accidental injury terminated with Referee Reynolds' decision, from which there was no appeal. Jurisdiction of the subject matter may be raised at any stage of a proceeding. Of course, relators could have reviewed the commission's order vacating the decision of Referee Reynolds. They did not do so; but before Referee Schaefer, appointed by the commission to take additional *122
testimony and make findings of fact and further order in the premises, objection to jurisdiction was made; and thereafter relators moved the commission to vacate its order vacating the decision of Referee Reynolds. Within proper time from the filing of the commission's order denying the motioncertiorari was applied for and issued, and we hold that the jurisdiction of the commission is here for review. Mark v. Keller,
Relators rely on Rosenquist v. O'Neil Preston,
Assuming that Referee Reynolds' decision filed September 16, 1933, is a finding that the disability caused by the injury had ceased and the right to compensation terminated with July 24, 1933, we come to the question whether, under the law then existing, the commission had authority and power to entertain the application of respondent to vacate the referee's decision and grant a rehearing. *123
The decision in the Rosenquist case,
The application or petition to vacate Referee Reynolds' decision states good cause. Whether sufficient cause was shown for the vacation of the decision and granting a rehearing is not here for review, nor is Referee Schaefer's decision on the merits.
The order vacating the decision of Referee Reynolds filed September 16, 1933, and granting a rehearing is affirmed, with $50 attorneys' fees to be taxed herein as costs against relators.
Addendum
Relators' petition for rehearing on the ground that the accident in which respondent was injured having occurred prior to the amendment of 1 Mason Minn. St. 1927, § 4295, the rights of the parties became fixed as of that time. That is true as to the right of compensation, the amount thereof, if within fixed schedules, and the times of payment. Warner v. Zaiser,
The petition for rehearing is denied.