Red River Lumber Co. v. Pillsbury

SHAW, J.

This is a proceeding to review and annul an award for disability indemnity made by the Industrial Accident Commission against the plaintiff in favor of Thomas E. Wilson.

The proceeding before the commission was instituted by Wilson more than six months after the date of the accident which caused the injury, and more than six months after the making of any payment or agreement by said company on account of the injury and disability. The plaintiff here contends that this lapse of time deprived the commission of jurisdiction to make an award to the injured employee.

The company did not file any answer before the commission, and did not raise the objection that the application for relief was filed too late, at any time during the hearing, nor at all, except in a petition to the Industrial Accident Commission for a rehearing, after the award was made. It is now claimed on behalf of the commission that the lapse of time does not oust the jurisdiction, but is only matter of defense, and that it was waived by the failure to assert it before the close of the hearing before the commission.

The provision relied on by the Red River Lumber Company in support of its contention is found in section 16 of the Workmen’s Compensation, Insurance and Safety Act, particularly clause (a), which reads as follows:

“Unless compensation is paid or an agreement for its payment made within the time limited in this section for the institution of proceedings for its collection,

the right to institute such proceedings shall be wholly barred.”

The time allowed for the institution of proceedings to collect disability indemnity is limited by clause (b) to “six months from the date of the accident,” or from the date of

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the agreement or last payment, where such agreement or payment is made.

Section 23 of the act provides that if the defendant in such a proceeding desires to bring any fact to the attention of the commission as a defense to the claim, he must, within five days after service of the application upon him, file with the commission his answer setting forth such fact.