State Compensation Insurance Fund v. Industrial Accident Commission

GOODELL, J. State Compensation Insurance Fund, petitioner herein, was the insurance carrier of the petitioner D. D. Dunlap, who was the employer of respondent Myles J. Aten.

Respondent Aten suffered compensable injuries while in Dunlap’s employ and his application for compensation came before the respondent commission and was settled for the most part before respondent Riedman came into the case as Aten’s attorney. On August 21, 1947, a rating was made of permanent disability of 21% per cent, which the insurance carrier accepted, and on September 4, 1947, it made payment to the employee of all permanent disability indemnity then accrued amounting to $1,306.25, and continued to make payments in accordance therewith. There was no attorney representing the employee up to that time. Thereafter the employee applied for adjustment of compensation, and on October 22, 1947, a héaring was had thereon. On that application and hearing the employee was represented for the first time by his attorney, respondent Riedman.' At that time all temporary disability compensation had been paid and all permanent disability compensation had been paid except $225, which was not then due. The order required these installments to be paid semimonthly. On October 24, 1947, the insurance carrier paid the employee $100 and on November 24,1947, the remaining $125.

Although the last hearing was held on October 22, 1947, the findings and award were not filed until January 26, 1948. The award is for “$225.00, payable forthwith, together with interest as provided by law, less the sum of $35.00 payable to Fred M. Riedman as attorney’s fees.” It is dated January 26, 1948, and does not purport to speak as of any earlier date.

It thus appears from the admitted facts that the fund’s [823]obligation had been paid in full on November 24, 1947, or two months before the filing of the findings and award.

On February 16, 1948, 21 days after the award, the fund filed a “petition to reopen to amend findings and award” accompanied by a petition for rehearing bringing to the attention of the commission the facts just recited and praying for a correction in the findings and award to show that it had already paid the award in full. This was denied. On April 19, the fund petitioned for a rehearing of the last mentioned order to accomplish the same results. That petition was likewise denied.

The fund thus found itself subject to an award to pay for the second time $225, of which $35 was to be paid the employee’s attorney.