Norwich Union Indemnity Co. v. Industrial Accident Commission

NOURSE, P. J. Following an injury to an employee of petitioner Koetitz, the respondents after hearing duly deter[37]mined that he was entitled to a pension for permanent disability during the rest of his life and ordered payments at the rate of $7.77 per week. More than 245 weeks after the date of the injury the commission, after a hearing conducted for that purpose, ordered that this pension be commuted, fixing the present value thereof at $4,311.45, assuming interest at the rate of six per cent per annum, which sum the commission found to be the equivalent of an annuity payment of $75 monthly which was to terminate in the event of death prior to full payment of the annuity for a period of 70.76 months. The insurance carrier and the employer filed this petition attacking the jurisdiction of the commission to commute after the lapse of 245 weeks from the date of the accident and attacking- the portion of the order requiring payments in the form of an annuity.

The petitioners rely on section 20d of the Workmen’s Compensation Act. This provides in part: “The commission shall have continuing jurisdiction over all its orders, . . . and may at any time, . . . rescind, alter or amend any such order, . . . such power including the right to review, grant or regrant, diminish, increase or terminate, . . . any compensation awarded, . . . provided, that no award of compensation shall be rescinded, altered or amended after two hundred forty-five weeks from the date of the injury.”

The commission relies on section 28 of the same act, which reads in part: “At the time of making its award, or at any time thereafter, the commission, . . . may, in its discretion, commute the compensation payable under this act to a lump sum, if it appears that such commutation is necessary for the protection of the person entitled thereto, ... or that the employer has sold or otherwise disposed of the greater part of his assets, or is about to do so, or that the employer is not a resident of this state, ...”

The petitioners argue that the proviso found in subdivision d of section 20 is all-inclusive. The respondents argue that the provisions of section 28 are special in their relation to commutation of compensation. It will be noted that in subdivision d the commission is given power “at any time” to rescind, alter or amend and that the proviso is limited to the rescission, alteration or amendment. Section 28, which comes later in point of arrangement, confers the power [38]