13 P.2d 850 | Cal. Ct. App. | 1932
The petitioners have applied for a writ of review to annul an award made by the respondent Commission. The record is very long; however, the facts pertinent to this application are very brief.
On December 23, 1924, while employed by Larsen Larsen, the respondent Joseph Wellde was injured. At that time the New Amsterdam Casualty Company was the insurance carrier for the employers. Thereafter, on July 27, 1927, the respondent Commission made an award in favor of the employee and on January 31, 1929, it amended its *14 award. By the terms of the last award the liability of the insurance carrier was made as follows: "Award is made in favor of Joseph Wellde, applicant, against New Amsterdam Casualty Company of the sum of $3,974.10, payable at the rate of $20.38 a week, beginning January 31, 1925, and continuing for one hundred ninety-five weeks, until all of said award shall have been paid, less $100 payable to Alex Sheriffs, and less the further sum of $100 heretofore paid to applicant's former attorney, Joseph A. Brown, and it is ordered that the employers herein be dismissed and discharged from liability herein." No attack thereon was made, no application for a rehearing was made, and no further step was taken before the respondent Commission, and the respondent Commission did nothing else until the third day of September, 1929. On that date without any motion being made, without notice to the insurance carrier or to anyone else, but of its own motion, the respondent Commission entered an award as follows: "Award is made in favor of Joseph Wellde, applicant, against New Amsterdam Casualty Company, defendant, of the sum of $20.38 weekly beginning January 1, 1925, and until two hundred forty weekly payments shall have been paid in the total sum of $4,891.20 and the further sum of $12.54 weekly, thereafter, for the remainder of his natural life." At this point it should be noted that the last-named award was made on the last day of the week, which was the two hundred forty-fifth week after the date of the injury. Claiming that the award last referred to was void, the insurance carrier at once applied for a rehearing; the rehearing was at once granted and thereafter the award was, by the respondent Commission, affirmed. Thereafter the insurance carrier applied to this court for a writ of review and for a judgment to the effect that the amended award dated September 3, 1929, be annulled.
[1] In support of its petition the insurance carrier asserts that the amended award was void for two reasons, (1) no notice of an intention to make an amended award was given to the insurance carrier and therefore the amended award was void; (2) the statutory term of two hundred forty-five weeks having expired the respondent Commission had no jurisdiction to entertain the petition for a rehearing on, or to enter any order either affirming or overruling the *15 award made September 3, 1929. The two attacks will be considered together. The petitioners quote section 20, subdivision (d) of the Workmen's Compensation, Insurance and Safety Act and italicize as follows:
"20 (d). The commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections six to thirty-one, inclusive, of this act and may at any time, upon notice and after opportunity to beheard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor, such power including the right to review, grant or regrant, diminish, increase or terminate, within the limits prescribed by this act, any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished or terminated; provided, that no award of compensation shall be rescinded, altered or amended after two hundred forty-five weeks from the date of the injury. Any order, decision or award rescinding, altering or amending a prior order, decision or award shall have the same effect as is herein provided for original orders, decisions or awards." Continuing, the petitioners citeUtah Fuel Co. v. Industrial Com. of Utah, 67 Utah, 25 [45 A.L.R. 882,
Replying to the petitioners' attacks, the respondent Commission says: "When the commission granted the petition for rehearing in the case at bar, the lack of notice and opportunity to be heard, to which the parties were entitled under section 20 (d) was cured." That remark is not sound. The order of September 3d was void. A void order cannot confer jurisdiction. But on that date the term of two hundred forty-five weeks ended and all power to amend ceased. It necessarily follows that the subsequent order, March 3, 1932, affirming the void order was itself void. The respondent Commission next asserts: "There is a disposition to contend that the commission may rescind, alter or amend a previous decision only within two hundred forty-five weeks after date of injury. With this contention the commission agrees except where the right to petition for a rehearing from any order made within the two hundred *17
forty-five week period itself lies beyond the two hundred forty-five week period. The case at bar is a concrete example. The final order of September 3, 1929, was made the last day of the two hundred forty-fifth week. Under such circumstances it is submitted that if any aggrieved party petitions for rehearing within twenty days thereafter, the right to rescind, alter or amend is extended for a period of time not exceeding eighty days, twenty days allowed to the parties to file petition for rehearing, thirty days after filing of said petition allowed the commission to consider same, and thirty additional if the time of consideration is extended." The respondent Commission cites no authority supporting any part of the foregoing argument. We know of none. If on the last day of the week of the two hundred forty-five week period an application for an amended award had been made, on notice duly given, and had thereupon been heard and submitted, and if the Commission ruled thereon some day subsequent to the two hundred forty-five week period the question would be altogether different. (Osmont v. All Persons,
The award is annulled.
Nourse, P.J., and Spence, J., concurred. *19