Vodopich v. Trojan Mining Co.

180 N.W. 965 | S.D. | 1921

Lead Opinion

GATES, J.

On May 13, 1918, Vodopich, respondent, suffered a sprained ankle from accident while in the employ of appellant. He received the legal compensation and medical relief required by the Workmen’s Compensation Rlaw (Rev. Code 1919, §§ 9436-9491) from that date until October 15, 1918, on which date he returned to the employ of appellant at the same wages he received prior to the accident. He continued in such employ until the latter part of February, 1919, On October 17, 1918, he signed a complete release of any further claim upon appellant on account of such injury, and made no claim for further compensation until March, 1919. In June, 1919, a petition was filed with the Industrial Commissioner asking that the release be set aside on the grounds of fraud and misrepresentation in its procurement, and that the matter be reopened and heard before a board of arbitration. A hearing was had upon said petition, and much testimony taken. The Industrial Commissioner found that there was no evidence of fraud in the securing of the release, and that the pain then suffered by respondent was caused by fiat feet, instead of the sprain, and denied the petition. Upon appeal the circuit court of Lawrence county reversed' that decision, and remanded the cause for further proceedings. From the judgment of the circuit court the mining company has appealed to this court.

It is claimed by appellant that in order to justify the reopening of the cause it was incumbent upon respondent to show that the release was procured by misrepresentation, and that he signed the samte without knowing its contents. This is not the law as applied to the Workmen's 'Compensation Act. Sec. 9448, Rev. ’Code 1919, provides:

“No contract or agreement, express or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this article except as herein provided.”

'Section 9467, Rev. Code 1919, provides:

“If the employer and employee reach an agreement in regard to the compensation under this law, a memorandum thereof shall be filed with the Industrial Commissioner by the employer or' employee, and unless the commissioner shall within twenty days, notify the em'ployer and employee of his disapproval of the agreement, by registered letter sent to their addresses as given on the memorandum filed, the agreement shall stand as approved and be enforcable for all purposes under the provisions of this article.”

[1] We are of the opinion that it is the plain intent of the Workmen’s Compensation law that, while fraud or misrepresentation in obtaining the release would be a ground for setting it aside, yet an injured employee is not required to establish the fact that an agreement for release of further liability was entered into by reason of the fraud or misrepresentation of the employer before he can have the cause reopened. Where such an agreement is signed and approved by the Industrial Commissioner under the provisions of section 9467, Rev. Code 1919, equitable grounds for setting aside the release must be established before the cause can be reopened. Foley v. Detroit United Ry., 190 Mich. 507, 157 N. W. 45. If ini this case the employee believed the results of the sprain were ended at the time he signed the release, but it afterwards developed that further pain and suffering were attributable to the sprain, that would justify the reopening of the case. Bradbury, Workmen’s Compensation (3d Ed.) pp. 1137-1149.

[2] Appellant further contends that it would next be incumbent upon respondent to showi that the injury was the proximate cause of his present disability, before he could be entitled to further recovery. With this contention we agree. Section 9490, Rev. Code 1919, provides:

“In this article unless the context otherwise requires: * * * ‘Injury’ or ‘personal injury’ shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form except as it shall result from the injury.”

[3] Assuming, without deciding, that if respondent was afflicted with flat feet at the time of the injury and that if the injury accelerated or brought on the present painful condition of his right foot, such disability would be held to be the proximate result of the' injury, yet respondent did not sustain the burden upon him of showing that the condition of flat feet resulted from or was accelerated by the injury. One physician was of the opinion thiat the condition of flat feet was of long standing. There was no testimony to the effect that respondent did not have flat feet prior to the' accident. Aside from respondent’s own testimony as to present pain, and that it was occasioned by the accident, the evidence of these several physicians was to the effect that, while the accident might possibly have accelerated or increased the painful condition arising from flat feet, it was to the effect that the accident had not done so. We cannot say therefore that the clear preponderance of the evidence was against the finding of the Industrial 'Commissioner. In fact we 'think it supports his decision.

[4] The Industrial Commissioner heard the evidence from the mouths of the witnesses. He observed their demeanor. He was in better position to judge as to- credibility of. the witnesses than was the trial court, or than is this court. In Day v. Sioux Falls Fruit Co., 177 N. W. 816, we said:

“The insufficiency of the evidence before the Industrial Commissioner, on the question of dependency, is not subject to review, by an appellate court, where there is any reasonable or substantial evidence tending to establish the findings of the commissioner.”

The same rule, applies to the matter in hand. We do- not doubt that if that decision • had been handed rlown prior to the judgment of the trial court herein its judgment would have been an affirmance of the decision of the Industrial Commissioner. Another decision supporting the views of this court herein and in Day v. Sioux Falls Fruit Co., supra, besides those cited in the latter case, is Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245, where the court said:

“There is evidence in the case which supports the findings of fact made by the commission, hence it cannot be said that the board acted without or in excess of its powers, even though this court, if trying the fact, might reach a different conclusion. If there is any substantial, credible evidence supporting the findings of the commission, the courts cannot interfere.”

[5] See, also, Jackson v. Iowa Telephone Co. (Iowa) 179 N. W. 849.

It is urged that the Industrial Commissioner should, as a matter of course, have reopened the cause, and should have submitted the matters decided by him to a board of arbitration for decision.

This was not a claim for compensation in the first instance. Whether the original claim' was adjusted by agreement under the provisions of section 9467, Rev. Code. 1919, or by arbitration under the provisions of sections 9468, 9471 does not appear. It is unimportant which method was followed. The present application to reopen the case did not involve a dispute as to the amount of compensation. The question was whether the applicant made such a showing before- the Industrial 'Commissioner as would justify the reopening of the case. We are of the opinion- that under the powers granted the Industrial Commissioner by sections 9464, 9466, and 9476 he had the power to make that - determination, and that-it is within the spirit of the Workmen’s Compensation Act for him to make that decision, instead of-putting the parties to the expense of a board of arbitration to make it-.-

[6, 7] But even if he ought -to have submitted that question to a board of arbitration, his determination was error without prejudice. By section 9474 the Industrial Commissioner is given revisory power over the decision of a 'board of arbitrators. In view of his -decision we must presume that upon review he would have decided as he did; consequently it does not appear that any prejudice resulted to applicant by his-taking unto himself the determination of the question. Furthermore, while in his petition to reopen the case appellant did ask that the question be submitted to a -board of arbitration, yet -he and his counsel appeared at the hearing before the Industrial -Commiissioner, and submitted the matter to -him. 'No objection was made to the hearing of the petition by the commissioner instead of by a board of arbitration. Therefore applicant ought not at this time to be heard to complain thereof.

The judgment of -the trial court is reversed.

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Dissenting Opinion

WHITING, J.

(dissenting.) I am of the opinion that, as a matter of course, the commissioner should have created a board of arbitration to consider respondent’s claim for compensation; and that he should not have assumed the right to pass upon the very matters which the lawi contemplates shall be determined by such a board. In this case the -commissioner went into every question that would properly have been before a board of arbitration. -My colleagues hold that section 9474 gives the commissioner revisory power, and that, inasmuch as we must presume that he would, upon revision, have overturned any determination of a board, if it had chanced to differ from his views, the error, if any, in not creating a board, “was error without prejudice.” If my colleagues are correct, it would never be reversible error for the commissioner to refuse to submit a claim to arbitrators and hear and determine it as sole arbitrator.

The evidence shows: That respondent was afflicted with flat feet prior to the accident; that, while it may -be that the pain in tine right foot originated from th-e flat feet, yet, that he is suffering a disability 'because of pain in that foot; that 'he suffers no pain in- the left foot; that he h-as received no accident to the right foot other than the one that resulted in the sprain; that this injury must have (been a severe one, as indicated -by the length) of time he suffered from the sprain; and that, while the pain may- be traceable to flat feet rather than to the sprain, yet the original cause thereof is traceable back to the accident and not elsewhere. There is not a 1 doctor or other party who testified that in his opinion, respondent would now be suffering these pains if it had not been for-such accident.

I am of the opinion that the views of the trial judge, as expressed in-his statements found in appellant’s brief, are sound; that respondent is entitled to have a hearing before a board of arbitration ; and that it is for such board of arbitration to determine the cause of this disability.