298 P. 381 | Utah | 1931
Lead Opinion
This is a proceeding to review an award of compensation made by the Industrial Commission of Utah in favor of John H. Butler, payable by the Utah Apex Mining Company, a corporation, and its insurance carrier, the AEtna Life Insurance Company, a corporation. The only question presented for review is whether or not the claim of John H. Butler for compensation is barred by the statute of limitations. This question was timely raised before the Industrial Commission and decided against the plaintiffs. The facts, so far as material to the question presented for determination, are as follows: John H. Butler was injured on March 10, 1927, by powder fumes and smoke while in the course of his employment with the Utah Apex Mining Company. The AEtna Life Insurance Company was the insurance carrier of the Utah Apex Mining Company, a corporation, subject to the Industrial or Workmen's Compensation Act. The plaintiffs paid Butler compensation from the date of his injury to and including September 10, 1927, when he resumed work. Between September 10, 1927, and March 25, 1928, Butler was not paid any compensation. On March 25, 1928, plaintiffs resumed payments of compensation and continued payments until July 14, 1928. On August 2, 1928, Butler filed with the Industrial Commission of Utah a formal written application for adjustment of his claim for compensation. On September 25, 1928, a hearing was had before the commission. On November 6, 1928, the commission made its decision awarding to Butler compensation "in the sum of $16 per week beginning July 15, 1928, all accrued payments to date to be paid in a lump sum and thereafter once every month until otherwise ordered by the commission." The decisions further provided "that said John H. Butler, applicant herein, report to Dr. M.M. Critchlow from time to time and whenever requested to do so by said Doctor, for observation and treatment if necessary. * * * The Industrial Commission of Utah retains jurisdiction over this case until all proceedings *544 are had and all matters and things done therein to finally dispose of the same according to law."
The plaintiffs, in compliance with the order of the commission, paid compensation until March 3, 1929. On that date, upon the advice of Dr. Critchlow, Butler went to work in the coal mines of Carbon County, Utah, and plaintiffs ceased paying compensation. Mr. Butler worked until January 14, 1930, when he was forced to quit because of his disability. On March 15, 1930, Butler filed with the commission a written application for further compensation. On April 2, 1930, a hearing was had on the application. Thereafter, on October 11, 1930, the commission awarded Butler compensation "at the rate of $16 per week beginning January 14, 1930, all accrued sums to date to be paid in a lump sum and thereafter once every month until otherwise ordered by the commission."
The plaintiffs seek to have the award which was granted on October 11, 1930, annulled because more than one year elapsed between March 3, 1929, the date when they paid Butler the last compensation, and March 15, 1930, the date when Butler filed his application for additional compensation. That is the sole question presented for review. No claim is made that the original application was not filed in time.
In their brief plaintiffs call our attention to the following cases: Utah Consolidated Mining Co. v. Industrial Commissionof Utah,
Comp. Laws Utah 1917, § 3144, provides as follows:
"The powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto as in its opinion may be justified." *546
It will be observed that the law just quoted does not limit the time that the commission shall retain continuing jurisdiction to one year, or at all.
If effect be given to the language of section 3144 we can see no escape from the conclusion that Butler's claim for additional compensation was not barred because he was not paid compensation for a period of slightly more than one year. It not infrequently happens that the injuries received by an employee are such that the nature and extent thereof cannot be 1-3 ascertained without the lapse of considerable time. If the commission be required to determine the amount of compensation that shall be paid before the extent of the injury becomes certain and fixed, the employee may receive more or he may receive less than he is justly entitled to under the Industrial or Workmen's Compensation Act. It was evidently to lessen or avoid the probability of such injustice that the provision granting the commission continuing jurisdiction was enacted. In this case Dr. Critchlow believed that Butler's condition would be improved if he would go to work. Butler was anxious to work rather than try to eke out an existence on the amount of compensation awarded to him. Under such circumstances we can conceive of no legal reason why he should be deprived of further compensation in the event that after a fair trial he found that he was unable to work. Butler's application for additional compensation was in no sense the beginning of a new proceeding, but was merely another step in the proceeding instituted by the filing of the original application. Chebot v.State Industrial Acc. Comm.,
The award is affirmed.
CHERRY, C.J., and FOLLAND, and EPHRAIM HANSON, JJ., concur. *547
Concurrence Opinion
Since this court by prior decisions (Continental CasualtyCo. v. Ind. Comm.