188 P.2d 639 | Kan. | 1948
The opinion of the court was delivered by
This appeal arises from a proceeding under the workmen’s compensation act, the principal question submitted being whether an award of compensation was prospective in operation so as to authorize proceedings for its review and modification, or, on the contrary was retrospective and final.
The record discloses that on June 1,1945, the workman sustained an accidental injury and made a claim for compensation which was heard on October 19, 1945. On December 19, 1945, the compensation commissioner approved an award for twenty-five compensable weeks of temporary total disability payable at the rate of $18 per week, or the total sum of $450, all of which was past due and owing and was ordered paid in one lump sum. The award continued as follows:
“Further award is made in favor of this claimant and against the respondent and insurance carrier in that they are ordered to pay the bill of Dr. T. W. Reid, Gardner, Kansas, and provide further medical and hospital care for the claimant at an expense in all not to exceed five hundred ($500) dollars.”
Neither party appealed from the award. The workman accepted payment of $432 of the award and refused payment of $18. On January 17, 1946, she filed her application for a modification and review of the award of December 19, 1945, claiming that she was
The workman appealed to the district court, which filed a written opinion in which it reviewed the situation, directed attention to Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, and Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P. 2d 5, as holding that the workmen’s compensation act provides for compensation during incapacity and that the implication is that compensation should cease when incapacity ends, and concluded that the original award of December 19, 1945, in effect declared that incapacity had ceased before the award was entered; that the award was retrospective so far as the direction to furnish medical aid was concerned since at the time of the hearing on October 19, 1945, enough of the compensable time of twenty-five weeks remained so that medical aid could have been furnished contemporaneously therewith and therefore the award was final in event of failure to appeal. The court affirmed the order of the compensation commissioner.
In this court the workman’s contentions, shortly stated, are that the trial court erred in affirming the order of the compensation commissioner in that the furnishing of medical service by the employer to the workman is payment of compensation (Wolgamott v.
Our attention is directed to the evidence received on the hearing of the original claim on October 19, 1945, resulting in the award of December 19, 1945, and to the evidence received on the hearing of the petition for modification and review of that award in July and October, 1946, but in view of the' fact that the only question before us is the force and effect of the award of December 19, 1945, we need not review any evidence.
For the purposes of our discussion it may be conceded that this court has held in more than one instance that the furnishing of medical services by an employer to an employee is the payment of compensation under the workmen’s compensation act. See, e. g., Wolgamott v. Vinegar Hill Zinc Co., supra, and cases cited. And this court has likewise held in more than one instance that the duration of a workman’s incapacity is a question of fact to be determined by the trier of the facts. See Cowan v. Kerford Quarry Co., 146 Kan. 682, 72 P. 2d 999, and cases cited. It has also held, in effect, as found by the district court, that compensation should cease when incapacity ends. See Gorrell v. Battelle and Dobson v. Apex Coal Co., supra.
In reaching his conclusion that the petition for modification and review should be denied, the compensation commissioner made it clear that he relied upon the principles of law set out in Williams v. Lozier-Broderick & Gordon, supra, and on appeal the district court affirmed that conclusion. Appellant directs attention to that case and urges that a review of the facts there will show that the payments under the award extended after the award was made; that there was no question there as to the prospective nature of the award at the time it was made, and that the opinion has no applicability here. It is true there- was a different state of facts and that the precise question now before us was not involved in that case. The opinion discloses, however, that on January 14, 1943, an award was made for a period of thirty-four weeks commencing September 10,1942, and that the workman did not file his application for modification and review of the award until August 18,1943, or long after the award by its terms had expired. Attention was directed to the applicable statute (G. S. 1935, 44-528), and without following out the reasoning of the court, reference being made to the opinion therefor, it was held that where the trial court found that the claim
It may also be noted that in Dobson v. Apex Coal Co., supra, and cases cited, it was held that in a workmen’s compensation proceedings an award by the commissioner which is not appealed from becomes final and binding on the parties.
The award of December 19,1945, shows on its face that incapacity had ended when the award was made. No appeal was taken and the award became final. Even though it be conceded the report should have been filed not later than November 19, 1945, that report showed that disability had ended prior to the time the petition for review and modification was filed on January 17, 1946. If the award be construed that the medical service mentioned was payment of compensation to be made in the future, and that the award was therefore prospective in operation, then it was for compensation after disability had ended, and under our decisions, not valid. The reasonable construction of the award would be one that was valid and in harmony with our past holdings, and that the medical service to be furnished was that between the date of the hearing and the time that incapacity of the workman ended. That was the construction placed on the award by the compensation commissioner in the first instance, and by the district court on appeal, and is the construction which the statute and our decisions compel.
The judgment of the district court is affirmed.