Summary
In Saunders, the Supreme Court said the quoted statutory language "contemplates awards of continuing payments of fixed amounts on issues pending before the commission.
Summary of this case from Johnson v. St. John's Mercy Med. CenterOpinion
August 23, 1933.
1. MASTER AND SERVANT: Workmen's Compensation Act: Review. A final receipt by an injured employee for payments received from his employer, with the approval of the Workmen's Compensation Commission, was not a final settlement so as to deprive the commission of jurisdiction to review the award on account of a changed condition, since the receipt recited that it was "subject to review as provided in said act;" such words must be considered a part of the agreement.
2. MASTER AND SERVANT: Workmen's Compensation Act: Award. The provision of Section 3340, Revised Statutes 1929, for review of "any award" does not authorize a review of the commission's approval of a final receipt.
Section 3333, Revised Statutes 1929, contemplates awards of continuing payments for fixed amounts on issues pending before the commission; they may be ended, or the amounts increased or diminished during the period of the time fixed for the payments.
3. MASTER AND SERVANT: Review: Limitation. Where an injured employee executed a final receipt approved by the Workmen's Compensation Commission, he could not compel by mandamus the commission to review his alleged award on account of a change in his condition, when he did not file a claim for such review within six months after the last payment.
PEREMPTORY WRIT DENIED.
John M. Langsdale and Roy Rucker for relator.
(1) An agreement for compensation entered into between an injured employee and his employer approved by the commission has the force and effect of an award. Home Packing Ice Co. v. Cahill, 123 N.E. 416; Aetna Life Ins. Co. v. Shiveley, 121 N.E. 53. (2) Where an injured employee and his employer agree with reference to compensation under the terms of the Compensation Act and file the agreement with the commission, the employer waives the statutory requirement that the employee shall file claim for compensation within six months from the date of the injury. Curtis v. Slater Const. Co., 160 N.W. 661. (3) The approval of the settlement by the commission being in effect an award by the commission and the employer having waived the right requiring claim to be filed in the six months, petitioner is entitled to have the cause reviewed by the commission. Sec. 3340, R.S. 1929.
Roy McKittrick, Attorney-General, and Gilbert Lamb, Assistant Attorney-General. for respondents.
(1) The compromise and settlement entered into between the employer and employee, as approved by the commission, under Section 3333, Revised Statutes 1929, was valid and binding on its face. Sec. 3333, R.S. 1929; Mateer v. Ry. Co., 105 Mo. 320; Kronenberger v. Binz, 55 Mo. 121; Wonderly v. Christian, 91 Mo. App. 168; Brown v. Corn Products Refining Co., 55 S.W.2d 706; Lumbermen's Reciprocal Assn. v. Day, 17 S.W.2d 1043; In re McCarthy, 226 Mass. 444; Estes v. Hartford Accident Indemnity Co., 46 S.W.2d 417; Ostergaard v. Adams Kelley Co., 203 N.W. 564; Marchuk v. Coal Corporation, 161 A. 771; Mandy v. Federal Shipbuilding Dry Dock Co., 161 A. 837. (a) The approval of the settlement by the commission was not an "award." Odrowski v. Swift Co., 162 P. 268; Hobson v. Superior Court, etc., 230 P. 457; Kraemer v. Mergenthaler Linotype Co., 189 N.Y.S. 193; Sperduto v. Ry. Co., 123 N.E. 207; Gant v. Price, 10 P.2d 1082. (2) The proceeding attempted to be instituted was barred by limitation. Sec. 3337, R.S. 1929; Perry v. J.A. Kreis Sons, 49 S.W.2d 221. (3) Since no review is provided for when a settlement is made under Sec. 3333, the words "subject to review as provided in the Act" used in the final receipt are meaningless. Art. I, Ch. 28, R.S. 1929; Brown v. Corn Products Refining Co., supra.
Williams, Nelson English, Charles M. Howell and William H. Allen, amici curiae.
(1) The issuance of a writ of mandamus is not a matter of right, but highly discretionary with the court whose powers are invoked and it is within the sound discretion of this court on its own motion to dismiss and discontinue mandamus proceedings when issues and considerations appear which would have caused denial of the alternative writ had their existence been known when such writ was applied for. State ex rel. Dawson v. Caster, 12 S.W.2d 462. (2) Mandamus should be awarded only where there is a clear legal right to do the precise ministerial act demanded, and never where the doing of the act is discretionary. State ex rel. Gehner v. Thompson, 316 Mo. 1169; State ex rel. v. St. Louis, 158 Mo. 505. (3) Chapter 28. Revised Statutes 1929 (Workmen's Compensation Act), provides two methods of handling by agreement and compromise matters affecting the right of an employee to compensation for injuries coming under the provision of said act. One method (Sec. 3333, R.S. 1929) contemplates a completed payment of satisfactory compensation and final settlement between the parties and requires only the approval by the commission of such settlement. The other method (Sec. 3334) provides for an agreement which contemplates future payments of compensation to the employee, and which agreement must not only be approved by the commission, but must also be embodied in an award. In this case the first method was followed. Secs. 3333, 3334, R.S. 1929; Brown v. Corn Products Refining Co., 55 S.W.2d 710, (4) The alternative writ commands the Compensation Commission to review a voluntary compromise settlement made between the relator and his employer on March 17, 1928, filed with and approved by the commission on March 20, 1928, and this valid compromise settlement is not reviewable by the commission for a subsequent change in conditions. The power of the commission was exhausted as to this case when it approved the settlement, and it is conclusively presumed that the commission found all the facts required to be found by Section 3333, Revised Statutes 1929, to bring about the approval. Hence, mandamus will not lie to compel such review. Secs. 3333, 3334, 3337, 3339, 3340, 3341, 3342, R.S. 1929; Brown v. Corn Products Refining Co., 55 S.W.2d 710; Olentine v. Calloway, 295 P. 608; Thomas v. Liondale Bleach, Dye Print Works, 159 A. 313; Young v. Glynn, 131 So. 51; Lumbermen's Reciprocal Assn. v. Day, 17 S.W.2d 1043; Texas Employers' Ins. Assn. v. Lee, 21 S.W.2d 56; Maryland Casualty Co. v. Meyer, 41 S.W.2d 291; Bosquet v. Howe Scale Co., 120 A. 171; De Lucca v. Vezzetti, 128 A. 545; State ex rel. Buttiger v. Haid, 51 S.W.2d 1008. (5) Review of an award by the Compensation Commission because of changed conditions is discretionary and not mandatory where the application for such review is timely made. Section 3340. Revised Statutes 1929, states that the commission "may" review on that ground, while Section 3341, Revised Statutes 1929, tells when the commission "shall" review. These sections being construed together do not mandatorily require a review unless the application for review be filed within ten days after the award. R.S. 1929, secs. 3340-3341; Waring v. Met. Life Ins. Co., 225 Mo. App. 609; Sei v. Guthrie Co., 50 S.W.2d 664; Waterman v. Chicago Bridge Iron Works, 41 S.W.2d 575. (6) Relator, by the express averments of the petition, alleges that respondents refuse to award petitioner the additional compensation due him under the provisions of the Workmen's Compensation Act. The prayer of the petition asking for the writ does not ask that respondents be ordered to review any award but asks that respondents be compelled to assume jurisdiction of a controversy "concerning petitioner's right to obtain and receive further compensation from his said employer under said Missouri Workmen's Compensation Act." This duty is not imposed but on the contrary, the relief is expressly prohibited because: (a) No proceedings for compensation can be maintained before the Workmen's Compensation Commission unless a claim therefor be filed with the commission within six months after the injury or death or in case payments have been made on account of the injury or death within six months from the date of the last payment, Sec. 3340, R.S. 1929. Plaintiff accepted final payment herein on March 17, 1928, which acceptance was approved by the commission on March 20, 1928 Plaintiff filed no claim for additional compensation on account of alleged changed conditions or request for review until September 26, 1932, a period of four years, six months and six days after final payment. The requirement that claim be filed within the time prescribed by the statute is mandatory. Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W.2d 571; Price v. K.C. Pub. Serv. Co., 42 S.W.2d 54: Gant v. Price, 10 P.2d 1082. (b) The Workmen's Compensation Act (Ch. 28, R.S. 1929) creates new rights and remedies and therefore the time therein fixed within which claims shall be filed becomes a limitation or condition precedent on such right, and a claim not filed with the commission within six months from the date fixed by the statute is barred. McConnell v. Hennessy, 44 S.W.2d 195: Young v. Management Eng. Corp., 45 S.W.2d 929; Fisher v. Ely Walker D.G. Co., 46 S.W.2d 902; Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W.2d 571; Perry v. Kreis Son, 49 S.W.2d 220; Wheeler v. Mo. Pac. Railroad. 33 S.W.2d 179, 42 S.W. 579; Helle v. Eyerman. 44 S.W.2d 234; Murphy v. Burlington Overall Co., 34 S.W.2d 1035. (c) The Compensation Act contemplates a limitation where the parties have voluntarily paid under an approved agreement. Kauffman v. Industrial Accident Comm., 174 P. 690.
Original proceeding in mandamus. Relator seeks to compel the Workmen's Compensation Commission to review an alleged award for compensation. The writ was waived. On return made by the commission to the petition as and for the writ, relator moved for judgment on the pleadings. The statutes herein considered are sections of Revised Statutes Missouri 1929.
On December 19, 1927, relator's left hip was dislocated while in the service of an employer. They were under the Compensation Act. The employer filed with the commission a written report of the accident. On January 3, 1928, relator, employer and insurer filed with the commission a "First Receipt and Temporary Agreement." It provided that the employer and insurer would furnish medical aid as provided in the act, pay relator $20 on December 20, 1927, and continue to pay him said sum per week for such time as provided in the act, or until the parties otherwise agreed. It also receipted for the first payment of $20.
It further provided that any difference between said weekly payments and the compensation which might be due under the act would be refunded on final agreement or award.
It further provided that the agreement was subject to the provisions of the act and that the payments might be modified as provided in the act.
It further provided that nothing in the agreement should be used as an admission against interest or of liability other than for the said weekly payments provided for in the act.
On March 17, 1928, relator signed a paper designated "Final Receipt for Compensation" in which it was stated that the disability began December 20, 1927, and ended March 4, 1928, and that the total weeks of compensation was 10 6/7 weeks. The receipt was received and approved by the commission on March 20, 1928. It follows:
"Received of Baker-Lockwood Mfg. Co. ........ dollars ($17.16) making with payments previously received a total of two hundred seventeen 16/100 dollars ($217.16). in consideration whereof the said employee (or his dependent) hereby releases and discharges Baker-Lockwood Mfg. Co., from all liability under the Missouri Workmen's Compensation Act by reason of said accident subject to review as provided in said act."
On execution of said receipt and the payment of the $17.16 relator resumed employment with the employer and so continued until in September, 1930. On September 30, 1932, he filed with the commission an application for review on the ground of a change in condition. In the application he stated that after filing the "Final Receipt for Compensation" with the commission he gradually developed an ankylosis from said injury and from September, 1930, was permanently disabled.
The commission refused to hear the application on the ground that it was without jurisdiction. It contends that the execution of said receipt by relator and the payment to him of $17.16, and the prior payment to him of $200 was a settlement of all liability under the act. In other words, it contends that relator and the employer agreed that all disability ended on March 4, 1928, and that relator made final settlement with the employer, as authorized by Section 3333, which section follows:
"Nothing in this chapter shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof but no agreement by an employee or his dependents to waive his rights under this chapter shall be valid nor shall any agreement of settlement or compromise of any dispute or claim for compensation under this chapter be valid until approved by the commission nor shall the commission approve any settlement which is not in accordance with the rights of the parties as given in this chapter. No such agreement shall be valid unless made after seven days from the date of the injury or death."
We do not think the "Final Receipt for Compensation" was a settlement under said section. It was "subject to review as provided in said Act." Respondents contend that said words should not be considered in interpreting said receipt citing Brown v. Corn Products Refining Co., 55 S.W.2d 706. In that case evidence was heard and the Court of Appeals ruled that the facts and circumstances in evidence conclusively showed that it was the intention of the employer and employee to make a final settlement: that the words "subject to review as provided in said Act" were mere printed matter of a form for receipt and that said words should not be considered as a part of the agreement.
In this case there are no facts and circumstances in evidence for consideration as an aid to a correct interpretation of the contract. We must determine the intention of the employer and relator from the contract as written. Indeed, the record tends to show that the "Final Receipt for Compensation" was approved on a mere examination by the commission. In this situation said words of limitation must be considered as a part of the agreement as to the liability of the employer. If so, the settlement was "subject to review as provided in said Act."
Relator contends that the settlement was made subject to review under Section 3340, which follows:
"Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may at any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall immediately send to the parties and the employer's insurer a copy of the award. No such review shall effect such award as regards any moneys paid."
In this connection relator argues that the approval of the receipt by the commission was in effect an award. Even so, it does not follow that a review of said award is authorized by this section. The words "any award" as used in the section do not include all awards made by the commission. If the approval of the receipt by the commission was in effect an award, the approval by the commission of a settlement under Section 3333 also would be in effect an award. It would not be contended that the words "any award" included an award under Section 3333, which authorizes a final settlement of all liability subject to the approval of the commission. Furthermore the section contemplates awards of continuing payments of fixed amounts on issues pending before the commission. They may be ended, or the amounts may be either increased or diminished at any time during the period or periods fixed for the payments. It is a matter pending with the commission during said time. The contention is overruled.
However, on March 4, 1928, relator and the employer were of the opinion that the disability had ended. As yet the payments had been voluntary. On a change in condition, we think relator was authorized to make claim before the commission for additional compensation within the time fixed by Section 3337. It provides that "no proceedings for compensation under this chapter shall be maintained unless a claim therefor shall be filed with the commission within six months after the injury or death, or in case payments have been made on account of the injury or death, within six months from the date of the last payment." The provision for filing claims within six months from the date of the last payment has reference to voluntary payments or payments under a temporary agreement. It could refer only to such payments. If relator had filed a claim for additional compensation with the commission within said time, the settlement would have been subject to review on a hearing of said claim. He did not file such a claim within said time. Relator leans heavily on Section 3374 which provides for a liberal construction of the provisions of the act. The section does not contemplate or authorize a misconstruction of the act.
It follows that the peremptory writ should be denied. It is so ordered. All concur.