387 A.2d 1043 | R.I. | 1978
In this Workmen’s Compensation case the employee asks that a preliminary agreement with her employer, under which she is receiving weekly compensation benefits, be amended by adding dependency benefits for her three minor children. A trial commissioner denied relief, the full commission afffirmed and the employee appealed.
The facts are not in dispute. On May 22, 1971 the employee sustained a job-related incapacitating injury. Thereafter, on June 14, 1971, she entered into a preliminary agreement with her employer providing for the payment of disability benefits for total incapacity commencing as of May 23, 1971. That agreement, although prepared by a representative of the state Department of Labor, did not list the employer’s three minor children who were dependent upon her for support, and for whom she apparently would have been entitled to receive benefits provided by the statute then
At the hearing before the trial commissioner, no testimony was presented. Instead, counsel orally related the facts upon which the petition was based and stipulated that the only issue was the applicability of §28-35-57 which, in pertinent portion, provides that an employee’s claim for compensation shall be barred unless filed within 2 years after the occurrence or manifestation of the injury or incapacity. Both the trial commissioner and the full commission found against the employee on that issue, and she now challenges that finding on two principal grounds.
First, she contends that the right to dependency allowances provided by §28-33-17 was her children’s, not hers. She then argues, by analogy to §28-33-29, which expressly creates an exception to the bar of §28-35-57 in the case of a minor or incompetent dependent of a deceased or incompetent employee, that the 2-year limitation period is tolled during their minorities and will not begin to run until they have attained their majorities or at least until a guardian is appointed to act on their behalf.
Alternatively, the employee contends that a worker
We find this argument completely unconvincing and are unable to agree that §28-35-57 can reasonably be read as permitting filing of a claim for dependency benefits later than 2 years after a cause of action for those benefits accrues. With respect to filing dates, a claim for dependents’ benefits is no different from one for specific injuries, and there can be no question that the latter must be filed within 2 years of the time a cause of action therefor arises. Auclair v. American Silk Spinning Co., 109 R.I. 395, 398, 286 A.2d 253, 254 (1972). See also Henry v. American Enamel Co., 48 R.I. 113, 117-19, 136 A. 3, 6-7 (1927). A claim for dependency benefits is similarly barred.
The employee next argues that “[a]t any time after the date of the approval of any agreement or at any time after the date of the entry of any decree concerning compensation, and if compensation has ceased thereunder, within ten (10) years thereafter,” the commission may, pursuant to §28-35-45, correct or adjust an average weekly wage that has been erroneously computed; that to omit dependency benefits from the weekly compensation payable under a preliminary agreement is the equivalent of fixing an erroneous average weekly wage; and that the commission consequently may review and modify the agreement.
It is, of course, not open to question that §28-35-45 empowers the commission to adjust weekly compensation
Finally, the employee argues that the omission of dependency benefits for her children constituted a mutual mistake of fact, which under §28-35-5 permits reopening of the approved agreement.
That argument has no place here since the employee is precluded from urging at this stage of these proceedings a contention neither raised before the commission
The employee’s appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the Workmen’s Compensation Commission for further proceedings.
The children were born in 1966, 1967 and 1969.
The employee filed her petition on a form provided by the commission. It sets out nine numbered grounds upon which the petition may be based and opposite each is a box which a petitioner may mark, thereby indicating reliance thereon. One of those grounds is that “The compensation agreement or decree was procured by fraud, coercion or mutual mistake of fact.” In this case the employee here did not mark that ground. Instead, she marked the ground “Other reason for review” and stated as her reason that “Respondent [employer] refused to pay dependency benefits.”