Hill v. Conroy Bros. Co., Inc.

Todd, Justice. Relators seek review of a decision of the Workmen’s Compensation Commission awarding benefits to respondent. They contend that the commission abused its discretion in vacating the original award of benefits and that the commission’s finding that respondent is permanently and totally disabled is unsupported by the evidence. We affirm. Respondent sustained injuries to his lower back at work on April 9, 1966, and October 17, 1966. On September 11, 1967, he was awarded benefits for 104 weeks of temporary total disability and for a 30-percent permanent partial disability of the back. At the compensation hearing respondent’s counsel specifically reserved the question of permanent total disability. Despite this statement, counsel for respondent solicited substantial lay and *359 medical testimony during the hearing relating to this issue. Nevertheless, the referee in the original hearing made no findings as to the question of permanent total disability. His findings were affirmed by the commission on appeal, and there was no appeal to this court from these affirmed findings. Two commissioners wrote memoranda which tend to confuse the issue presently before us. In each memorandum, the commissioner discussed the issue of permanent total disability, an issue not before them for review. This error was further compounded in subsequent proceedings before the commission. Again, the referee and the commission proceeded on the assumption that the issue of permanent total disability had been decided in the original proceedings. As indicated previously, this assumption is not borne out by the record. Thus, the first time respondent has presented this issue is in the present proceedings. On March 26, 1973, the commission ordered the decision of September 11, 1967, vacated in the interest of justice pursuant to Minn. St. 1971, § 176.461. 1 Subsequent to a second compensation hearing, respondent was awarded benefits for permanent total disability with credit given for the previous award. The award and the finding that respondent’s injuries of 1966 aggravated a preexisting emotional condition rendering him permanently and totally disabled were upheld by the commission on appeal. *360 We have held that the determination of whether there is cause to justify vacating a prior award rests in the sound discretion of the commission and its decision is final absent an abuse of discretion. Radzak v. Mercy Hospital, 291 Minn. 189 , 190 N. W. 2d 86 (1971). We feel that the commission’s action in this case is consistent with the basic statutory objective for which their discretion is invested, i, e., “to assure a compensation proportionate to the degree and duration of disability.” Elsenpeter v. Potvin, 213 Minn. 129, 132 , 5 N. W. 2d 499, 501 (1942); Mattson v. Abate, 279 Minn. 287, 292 , 156 N. W. 2d 738, 741 (1968). Further, we hold that respondent has not previously had a determination of this issue which would preclude the vacation of the original award. Although there is testimony to the contrary, the commission’s finding that respondent was permanently and totally disabled as the result of an aggravation of a preexisting emotional condition by his injuries at work is supported by substantial evidence and must be affirmed. Strei v. Church of St. Joseph, 290 Minn. 565 , 188 N. W. 2d 879 (1971); Minn. St. 15.0425(e). Attorneys fees in the amount of $350 are awarded respondent on this appeal. Affirmed. Minn. St. 1971, § 176.461, provided: “Except where a writ of certiorari has been issued by the supreme court and the matter is still pending in that court or where as a matter of law the determination of the supreme court cannot be subsequently modified, the commission, for cause, at any time after an award within eight years from the date compensation was last paid, upon application of either party and not less than five days after written notice to all interested parties, may set the award aside and grant a new hearing and thereon determine the matter on its merits and make such findings of fact, conclusions of law, and award or disallowance of compensation or other order as the pleadings and the evidence produced before it and the provisions of this chapter shall in its judgment require.”