Cagle v. Federal Mining & Smelting Co.

Opinion by STEPHENSON, C. A stone fell against T. J. Cagle while in the course of his employment, in the service of the Federal Mining & Smelting Company. The employe filed a claim befo,re the Industrial Commission for injury to his knee as the result of the accident. The commission made an award as compensation for the injury, and later the employer filed a motion in the cause to discontinue the compensation on December 4, 1923. The commission, after the hea,r-ing, denied the application of the employer, but ordered that the compensation he discontinued on February 4, 1924. The petitioner and his employer reached an adjustment and settlement of the compensation to be allowed the fo,rmer. The parties appeared before the commission and presented the settlement for approval, which was allowed in April, 1924. The petitioner filed his application for a modification of the prejvious award and allowance for injury to his shoulder six months after the date of the accident. The commission denied the application of the claimant and refused- to modify the compensation allowed the claimant. The claimant commenced his original proceedings in this coturt within the time provided by statutes for reviewing the judgment of the Industrial Commission denying his application for modification of the previous award made in his favor. The petitioner did not 'give notice to his *248 employer about tbe injury to bis shoulder, or make any claim for compensation as a result of tbe injury to bis shoulder within six months from tbe date of the accident. Tbe petitioner does not claim that tbe injury to his shoulder is an effect or tbe result of the injury to bis knee. Tbe award and compensation was allowed tbe petitioner upon a claim for injury to bis knee. Tbe evidence of tbe petitioner before tbe Industrial Commission was that tbe injury to bis knee bad not changed from that condition which existed at the time compensation was fixed for tbe injury. Tbe .petitioner would not be entitled to a modification of tbe awa,rd if tbe evidence was confined toi tbe injury to bis knee, as be admits there bad been no change in tbe condition of the injury to bis knee. The plaintiff is in tbe attitude of presenting a claim for compensation based upon an injury different from that heretofore complained about, and different from that upon which bis claim for compensation was based. Tbe petitioner is in tbe attitude of presenting a claim for injury to bis sboulde.r for tbe first time after the éxpira- ' tion of six months from the date of the injury. Tbe plaintiff’s application for a modification of tbe award must fall for tbe reason that bis evidence shows there has been no change in the nature of tbe injury, or in its condition since a trial was bad thereon. Tbe petition is in tbe nature of an application for an award based upon an injury that has not been presented to tbe commission heretofore. The consideration of tbe application must be confined to tbe same statutory rules as would apply in .the original trial of such cases. To allow the modification of tbe previous award upon the facts in this case would subvert tbe provisions of section 7202, and deny the effect of the section as a statute of limitation. ■Only) tbe question of tbe sufficiency of tbe application of tbe petitioner to entitle him to a modification of tbe previous award, under tbe pro.visions of section 7296, Compiled Statutes of 1921, is involved. Tbe question of tbe sufficiency of the application to support a claim for compensation based upon a different injury is not before us for consideration, as this question was not presented by tbe petitioner and is not involved in trying the question of modifying some prior award. Ehrhart v. Industrial Com. of California, 172 Cal. 621, 158 Pac. 193. Tbe petitioner does not cite authorities or call our attention to any statutory provisions that authorize the modification of a previous award fpr injury because of some other injury suffered from tbe accident for which no claim was made in tbe first bearing. It is recommended that tbe judgment of tbe commission be affirmed. By the Court: It is so ordered.