Gray v. Hercules Powder Co.

165 P.2d 447, 160 Kan. 767, 1946 Kan. LEXIS 158

• Court: Supreme Court of Kansas
• Decided: January 26, 1946
• Docket: No. 36,501
• Status: Published

Opinions

The opinion of the court was delivered by

Hoch, J.:

This is an appeal by the employer from an award under the workmen’s compensation act. The principal question presented is whether an award which has been made by the district court may be modified by that court within the twenty days thereafter provided by the statute for taking an appeal to this court on questions of law.

Brief recital of the facts will suffice for presenting the issue. The claimant, William H. Gray, an employee of the Hercules Powder Company at De Soto, Kan., was injured on September 11, 1944, while attempting to lift a rocket to put it in a wooden case on a truck. He filed a claim under the workmen’s compensation act, hearing was duly held before the commissioner and an award made in his favor on March 31, 1945. The commissioner’s award was based upon a finding of temporary total disability for eleven weeks and of partial permanent disability of ten percent for an indefinite period subsequent to December 27, 1944, not to exceed 404 weeks. The commissioner also allowed $500 to cover medical and hospital expenses.

Upon appeal by the respondent to the district court, that court made its award on July 31, 1945. It followed the terms of the commissioner’s award as to the 11 weeks of temporary total disability and as to the allowance for medical and hospital expenses, but disallowed the claim entirely as to partial permanent disability. Up to this point no question is raised as to the regularity of the proceedings. On August 5, 1945 — five days after the court’s award had been entered — the claimant filed a motion to modify the court’s findings and award. To this motion the respondent filed an objection on the ground that the court had no jurisdiction to modify the award. On August 14, 1945 — fourteen days after the award had been entered — the court sustained the claimant’s motion to modify, stating:

“The court further finds that at the time it rendered its findings and award in the above entitled case on the 31st day of July, 1945, that it was in error in finding from the evidence that the claimant was not entitled to an award of permanent partial disability following his period of temporary total disability. The court finds that the findings and award of the workmen’s compensation commissioner made and entered in this case on the 31st day of March, 1945, should be adopted by this court and said findings and award so made by the workmen’s compensation commissioner on the 31st day of March, 1945, are hereby adopted and approved by this court and the award heretofore made by this court on the 31st day of July, 1945, are modified and changed so far as they differ and change the award and findings of the workmen’s compensation commissioner.”

The court then formally entered a new award in conformity therewith. From such new award of August 14, 1945, this appeal by the respondent was taken. The claimant thereupon filed what he termed a “cross-appeal” from the court’s first award, made on July 31, 1945, stating in his notice of appeal:

“This cross-appeal is taken as a precautionary measure in the event the supreme court of the state of Kansas should hold that the findings and award made by the district court of Johnson county, Kansas, on the 14th day of August, 1945, modifying the findings and award made by said court on the 31st day of July, 1945, was erroneous and without right, power, authority or jurisdiction.”

We first take note of appellee’s contention that the modification and new award, made on August 14 was in fact merely the correction of an “error,”- and should be regarded as in the nature of a nunc pro tunc order. Whether it would strengthen, appellee’s position to treat it as such wd* need not discuss. The record does not support appellee’s interpretation. When announcing the award on July 31, 1945, the court stated that it did not believe the claimant had proved any permanent disability resulting from the injury. Clearly the award first made represented just what was intended at the time. The court simply came to a different conclusion after further consideration of the record.

Soon after the original enactment of a workmen’s compensation law in this state in 1911 it was held that for injuries compensable under the act no recovery otherwise could be had. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193 [1914]; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247 [1914].) This rule has since been consistently followed. And following the comprehensive enactment of 1927 (Laws 1927, ch. 232) it has been held in a long line of decisions that the act is not cumulative or supplementary in character, but that it is complete and exclusive not only as to relief for injuries. Within'its purview but as to procedures to be followed.

In Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233—decided before the act was amended to permit appeals to this court on questions of law — an attempt was made to secure appellate review in this court under the general provisions of the code of civil procedure. Review was denied and in the opinion it was said:

“In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. Another feature is that when both parties unite in this plan to adjust compensation it tends to prevent friction and hostility between employers and employees that frequently arise in actions based on negligence of the parties. The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute.” (p. 649.)

In Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595, it was said that in the opinion in the Norman case, supra, “it was made as plain as clear and forceful English composition could make it that the legislature chose what procedure it would adopt, disregarded rules and methods of civil procedure, and substituted a system of its own, complete, explicit and exclusive.” (p. 204.)

In Willis v. Shelly Oil Co., 135 Kan. 543, 11 P. 2d 980, it was held that the district court, on appeals in compensation cases, can only grant or refuse compensation or increase or diminish an award made by the commissioner and has no power (citing the Norman case, supra, and other cases) to remand the case to the commissioner for further proceedings.

In Eagle-Picher M. & S. Co. v. Workmen’s Compensation Comm., 147 Kan. 456, 458, 76 P. 2d 808, we refused in a mandamus proceeding to compel the commissioner to include in the record for appeal to the district court certain affidavits filed after, the hearing before the commissioner had been closed. The decision was based upon the proposition that the statute prescribed what the record should contain and nothing in addition thereto can be included.

In Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74, the district court rendered judgment on November 30,1938, setting aside, an award, made upon. review by the commissioner, on the ground that the application for review had not been filed in time. On Décember 3,1938, the claimant filed a motion for a “new trial” which motion was overruled on January 14, 1939. No appeal was taken from the judgment of November. 30, 1938, but the claimant attempted to appeal from the order of January 14, 1939, overruling the “motion for a new trial.” It was held that post-judgment motions are not provided for in compensation procedure and that such motions cannot extend the time within which appeals must be taken.

In Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456, the question as to the scope of the act and procedure to be followed was again carefully examined. Again it was held that the act “establishes a procedure of its own, and that the procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases.” (pp. 298, 299, and cases cited.)

In Taylor v. Taylor, 156 Kan. 763, 137 P. 2d 147, it was held that an appeal to the district court could not be taken on limited issues, there being no provision in the compensation act for doing that. The district court must review the entire record as presented by the transcript of proceedings before the commissioner.

The issue decided in Walz v. Missouri Pac. Rld. Co., supra, is directly in point. After approving a'nd filing an award the commissioner made an order setting it aside and directing a rehearing. The order was held to be void. In the opinion it was said:

“What the commissioner has done — speaking in terms of civil procedure— was 'to review a judgment, set it aside, and grant a new trial. The legislature was perfectly familiar with that kind of procedure when it framed the compensation act. The civil code contains an entire article relating to new trials and proceedings to revise judgments, and when the compensation act was framed everything squinting in that direction was left out. The commissioner was given power to approve or disapprove the examiner’s'awards Beyond that the purpose manifestly was to avoid the confusion, uncertainty, delay and expense necessarily attending a practice looking to the reopening of closed cases.” (p. 204.)

(See, also, Hearst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540; Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952; Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 365, 41 P. 2d 748; Brower v. Sedgwick County Comm’rs, 142 Kan. 7, 45 P. 2d 864.)

The construction, of the compensation act;- firmly established in this, unbroken Une.-of decisions, leaves :no ground, in the view of a majority of this court, upon which to support the district court's order vacating the award of July 31 and making a new award. The appeal statute (G. S. 1935, 44-556) simply provides that when the required notice of appeal has been filed with the clerk of the district court the clerk “shall docket said cause for hearing as in other cases on appeal" and that the court “shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commissioner as justice may require.” There is no provision in the act for motions for a new trial or for other post-trial motions. There is no provision for modification of an award once made by the district court except as found in section 44-528 which provides for review, under certain conditions, by the commissioner at any time before, but not after, final payment. When an award has been made by the district court the only recourse for aggrieved parties — aside from such relief as'may be afforded by 44-528 — is by appeal to this court upon issues of law only. To permit the district court, either upon motion of parties or upon its own motion, to reopen a case and vacate or modify an award which it has made would open the way to delays in compensation cases —one of the very results which the legislature sought to prevent. If appellee’s contention is good, then on the 19th day after it has made an award the district court could set it aside and'-make a new award and on the 19th day thereafter it could again vacate or modify the award — and so on in this manner indefinitely. The fact that such a course may be unlikely does not affect the legal aspect of the question. If the court has power once to vacate its award, it has power to continue to vacate or modify as it sees fit. And if such power is to be recognized, in the absence of any provision for it in the act, where is the line to be drawn? What limits would remain on the power of a district court to supplement, in other particulars, the prescribed procedure?

The act does not put upon the district court any pressure of undue haste in considering these appeals. The court has ample time for full and careful.consideration of the record before making its decisions. The act merely provides that appeals in compensation cases shall have precedence over “other hearings except those of like character, and shall be heard not later than the first term of said court after the appeal has been perfected” (G. S. 1935, 44-556).

A very practical coflsideration also supports the established rule that the act js.é,xclijsife and cannot be supplemented by borrowing from the code of civil procedure. If it be held that the district court has power to vacate or modify awards once formally made the parties and their counsel could not rely upon the action taken, but would be required to keep constantly on the alert until the expiration of the statutory appeal period of twenty days in order to be sure no modification of the award had been made. If the legislature had intended such a contingency it would have provided for it in the law.

In view of the conclusion that the order of August 14, 1945, modifying the award was void it is not necessary to consider appellants’ contention that the finding of ten percent permanent disability was not supported by substantial evidence.

There remains for brief comment the “cross-appeal” of the claimant from the award of July 31. The appeal is not in fact a “cross-appeal” at all, but rather an appeal. Obviously, the “awards” of July 31 and August 14 cannot both be valid. Appellants object to consideration of the “cross-appeal” for reasons .which need not be discussed. We think it can properly be treated simply as an appeal from the award of July 31. Treated as such, however, the claimant makes no suggestion as to what we can do about it on this record. The only part of the award of which he complains is the failure to make a finding of ten percent partial permanent disability. In the first place, our jurisdiction being limited to questions of law we are without power to direct what finding the district court should make on a disputed question of fact. In the second place, the record clearly discloses a conflict of testimony as to whether the claimant suffered any permanent disability which resulted from the accident. In its award of July 31 the district court found that the record did not justify the claimant’s contention in that regard. There being substantial testimony to support that finding we cannot disturb it.

The judgment is reversed with directions to vacate the order and award of August 14, 1945, modifying the award of July 31, 1945.