American Railroad Co. v. Industrial Commission

Mr. Justice De Jesús delivered the opinion of the court. On July 9, 1941, the petitioner employer filed his report of wages corresponding to the fiscal year 1940-41, and on November 26, 1941, the Manager of the State Insurance Fund informed him that the amount he was required to pay for the first semester of the year 1941-42 was $14,079.26, and granted him until the following December 20 to pay the said amount. The employer did not pay for the first semester until January 20, 1942. On March 9 he paid $8,499.07 for the second semester. On May 6, 1942, the Assistant Manager of the State Insurance Fund notified the petitioner employer that all the accidents reported by him as having taken place from July 1, 1941, until March 8, 1942, had been declared uninsured, on the ground that the State Insurance Fund did not consider the petitioner as an insured employer during the above-mentioned period. The employer appealed to the Industrial Commission, and after the case of the deceased workman, Simón Angueira, No. C.I. 15,861 (M), who had died on February 11 of the preceding year was set for hearing on June 1, 1942, the employer was notified that at said hearing the — 305 — appeal taken by Mm against the decision of' the State Insurance Fund declaring him an uninsured employer during said period would be discussed. After the hearing was had and the parties had been heard, the Commission, on July 1, 1942, rendered a decision whereby it was held that the employer had not been insured from July 1, 1941, until March 8, 1942, and that he was liable for all the accidents which had occurred in his business during said period. On July 28, 1942, the employer moved for reconsideration of the decision of July 1, and gave as a reason for his delay in filing said motion that he had not been aware that said decision had been rendered until the 21st of said month, when one of the employer’s attorneys, Donald Id. Dexter,, came to the office of the Commission and asked if said case had been decided, whereupon a copy of the decision rendered on July 1, 1942, was delivered to him. On July 29 the Commision overruled the motion for reconsideration, and in relation to the defect in the service of notice alleged by the employer, it stated that, from the records it appeared that on July 1, 1942, a copy of said decision had been sent by mail and addressed in.the following manner: “Attorney Mariano Acosta Velarde, American Railroad Co. of Porto Rico, P. O. Box 2552, San Juan, P. R.” About six days after reconsideration had been denied— on August 4, 1942 — the petitioner filed a petition for review in this court. Inasmuch as §10 of the Workmen’s Compensation Act (Laws of 1935, p. 250) provides that reconsideration shall be sought within ten days after the date “on which the interested person is notified of the decision of the Commission,” and it being further provided by §11 of the same act, as amended by Act No. 121, approved May 2, 1940 (Laws of 1940, p. 728), that review by the Supreme Court may be requested within fifteen days after notification of the denial of reconsideration, the State Insurance Fund has prayed for — 306 — dismissal of this petition for review on the ground that it was taken after the expiration of said period and, besides, on the ground that it is frivolous. In passing upon the motion for dismissal, we shall first say that the rule established in Santana v. Salinas, 54 P.R.R. 109, and Asencio v. Heirs of Rodríguez, 49 P.R.R. 8, to the effect that when the party who notifies and the party on whom notice is to be served resides within the same municipal district, service by mail is void, is not applicable to cases like the present. In the instant case it is not a matter of notification between parties, but of a notice of a judgment or a.decision by a quasi-judicial administrative agency. The applicable doctrine is the same as when a notice of judgment is served by a court. But as a matter of fact the notice was not effective until July 21, 1942, it appearing from the record herein, from an affidavit by Attorney M. Acosta Velarde, that his post-office box has always been No. 326 and not No. 2552, where the copy of the decision was sent, according to the Commission’s own statement, it being further stated by Attorney Acosta Velarde, as well as by the other two attorneys for the petitioner in their affidavit filed herein, that no notice whatsoever was served upon them at any time except the one served personally on Attorney Dexter on July 21, 1942. Since the notice of the decision of July 1st was received on the 21st of said month, and since reconsideration was sought seven days thereafter and the petition for review in this court was filed on August 4, that is, six days after notice of the denial of the reconsideration had been .served, it is obvious that the motion for reconsideration before the Industrial Commission, ás well as the petition for review in this court, were filed within the periods of fen and fifteen days, respectively, fixed by law; and since the appeal is not frivolous, as we intend to show in the course of this — 307 — opinion, the motion of the State Insurance Fund should he dismissed and the appeal should he considered on its merits. The first question which we shall consider is whether or not the employer in this case was uninsured during the first semester of the year 1941-42. The Workmen’s Compensation Act provides that the insurance premium to he paid hy each employer who has been insured during the preceding year shall he computed on the total number of workmen employed by said employer, the kind of occupation or industry of said workmen, and the total amount of wages paid to said workmen or industry during the preceding fiscal year, all this appearing from a duplicate statement under oath which shall he filed hy the employer with the Manager not later than July 15 of each year. In view of the fact that the year begins on July 1st of each year, and that therefrom the insurance would he outstanding not only during the first fifteen days of July but also during those days which the Manager would need to study and levy the premium based on said duplicate statements, the Act provided that any employer who has been covered hy the State Fund up to the end of the preceding fiscal year and is covered from July 1 of the current year, shall also he covered during the period from July 1st to July 15 granted hy this Act to file the pay roll, provided that every employer should file it within the said term of fifteen days, and it further provided that the payment of the premium within the term granted by the Manager gives the policy a retroactive effect to the date on which the pay roll or duplicate statement was filed; it also provided that an accident which occurs after July 15 shall be considered as a case of an uninsured employer unless the employer pays within the term fixed by the Manager. In the case at bar the employer filed his pay roll' of the . preceding year on July 9, 1941, and the Manager levied the premium and granted it until December 20, 1941, to pay for .the first semester. The emplojmr did not pay during the — 308 — first semester but paid on tRe following January 20, when the second semester had already begun. This being so,'we feel bound to conclude that the petitioner was an uninsured employer during the first semester, as alleged by the Manager. But the Manager believes that he is entitled to retain the premium paid and at the same time compel the employer to pay the compensation for all the accidents which occurred in his business during the semester in question. It is evident that the Manager is not attempting to collect an obligation for services rendered, for, as he himself alleges, the employer in this case is an uninsured employer. Therefore, there is no doubt that the payment of the so called “quota” or “premium” would in effect be a penalty imposed on the employer, and it is a well-known fact that penalties are never presumed. Until the Legislature expressly levies a penalty to the effect that an employer, even though an uninsured one, shall pay the premiums just as if he were insured, will we be in a position to pass upon the validity of such a penalty. Having decided this first question, we shall now pass upon the second one: Should the petitioner be considered as an uninsured employer in connection with an accident which, as happened in this case, occurred on February 11, 1942, that is, after payment of the premium for the first semester had been made and the same was in the hands of the Manager on January 20, 1942, it being much greater than the one for the second semester, and as we have seen, not applicable to said first semester because it had been paid after the payment had become due and the period had expired? There is no merit to the Manager’s second contention. The premium for the second semester should have been paid on January 10, 1942, and since payment was not made until the 20th of the same month, it is evident arid admitted by the petitioner that he should have been considered as an uninsured employer during those days of January dur — 309 — ing which payment was due; but thereafter, since the employer has funds in the hands of the Manager precisely to cover his insurance, said funds should be applied, so far as necessary, to the payments due for the second semester and he should be considered as an insured employer, thus following the underlying principle of justice stated in the maxim of equity which says that equity regards as done that which ought to be done. The doctrine laid down in Montaner, Mgr. v. Industrial Commission, 59 P.R.R. 398, is in perfect harmony with the conclusion which we have just reached. In that ease the employer paid during the first semester, but he did so after the expiration of the .term granted by the Manager, and we held that from the date of payment and thereafter he had the status of an insured employer during said semester, but that said payment did not have retroactive effect because it had been paid after the expiration of the period granted by the Manager, and therefore, for the purposes of the accident involved therein, which occurred before the payment, the employer must be considered as an uninsured employer. In the instant case the Commission held that the employer had the status of an insured employer from March 8, 1942, when he paid the premium levied for the. second semester and he invoked the case above cited; but the Commission did not take into account the fact that from January 20, 1942, the Manager had in his hands the amount paid without basis therefor for the first semester, which should have been applied to the second, and which more than covered the premium for the second semester. For the reasons stated, the decisions appealed from should be modified so as to hold the petitioner an uninsured employer during the first semester of the year 1941-42 and the first nineteen days of the second semester of the same year, and an insured employer from January 20, 1942, and thereafter. February 3, 1943.