Opinion
No. 38046.
October 15, 1951.
1. Workmen's compensation — final award and attorney's fee — advance payments by employer.
The subsection of the workmen's compensation statute, which provides that if the employer has made advance payments of compensation he shall be reimbursed out of any unpaid installment of compensation due, and which contemplates temporary assistance pending determination of the claim, has no reference to the later subsection which provides that when an award of compensation becomes final, and an attorney's fee is outstanding, a partial lump sum settlement sufficient to cover the attorney's fee approved therein by the commission shall be made immediately from payments last to become due and deductions made by law shall be borne equally by attorney and client, Sec. 26(c) Chap. 412, Laws 1950, and Sec. 13(k) Chap. 354 Laws 1948.
2. Workmen's compensation — commuting into lump sum — for use of employee or for attorney's fee.
The subsection of the workmen's compensation statute, which provides that the liability of the employer may be discharged by the payment of a lump sum, if and when the commission determines that it is for the best interest of the person entitled to compensation, authorized the commission to commute any part of the future compensation payments into a lump sum either for the use of the employee or his dependents as the case may be, or for paying the attorney's fee. Sec. 13(j) Chap. 354, Laws 1948.
3. Workmen's compensation — liberal construction — commuted attorney's fee.
A liberal construction of the subsection of the workmen's compensation statutes providing for lump sum payment requires that the meager allowance of such a sum as $10.80 per week to an employee or his dependent should not be consumed in whole or in part in the payment of a commuted attorney's fee so far as the future payments first to accrue are concerned. Sec. 13(j) Chap. 354 Laws 1948.
4. Workmen's compensation — payment of attorney's fee out of last payments.
The objection that to require the attorney's fee to be paid out of the last payments to be due would mean that the carrier might be compelled to meet the payments for the entire period although the employee or dependent may die before the expiration of the period is met by the further provisions of the workmen's compensation statutes that the present value of future compensation payments is to be computed "at four per centum true discount compounded annually" and that the probability of the death of the person entitled to compensation before the expiration of the period during which he is entitled to compensation shall be determined in accordance with the American Experience Table of Mortality. Sec. 13 (j) Chap. 354 Laws 1948.
5. Workmen's compensation — payment of attorney's fee out of partial commutations.
While as a general rule legislative enactments are to be regarded as prospective and not retroactive in respect of a matter of substantive right as to liability on claims arising by reason of prior death of an injured employee, the rule has no application when the compensation commission in making its order for a partial commutation to the extent of the payment of attorney's fee acted under statutory authority already existing at the time of the death, and when the subsequent enactment, as in the instant case, was merely declaratory of, and intended to clarify if need be, the power theretofore existing. Sec. 13(j) Chap. 354, Laws 1948, Sec. 26(c) Chap. 412, Laws 1950.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Sharkey County; R.B. ANDERSON, Judge.
Farish, Keady Campbell, for appellant.
Our position, simply stated, is that Chap. 412, Laws 1950, applies prospectively to such cases as arise after its passage and not retrospectively to claims already adjudged and settled, with the result that the commission's order in this case dated May 8, 1950, was wholly void and unauthorized. Nor, we submit, can the commission justify the requirement that appellant pay a $750.00 attorney's fee incurred by appellee to come off of the compensation last to become due, by acting under Sec. 13(j) of the Act. Those two propositions are the only points to be asserted here, as we do not take issue with the reasonableness of the fee allowed by the commission.
In the first place, we contend that the order of May 8 was void because it was an attempt to apply, retrospectively, Chap. 412, Laws 1950, which was enacted on April 6, 1950.
The original Act was wholly silent with respect to commutation for any such purpose and any provision that the lump settlement might be made from compensation last due. There is no language in the amendatory act of 1950 which would make its provisions apply retrospectively, and there is every constitutional reason for holding that the rights and obligations of the parties concerning a workmen's compensation act are fixed and determined by the state of the law as it existed at the time of injury and death immediately following, as here, and cannot be changed by subsequent legislation. 58 Am. Jur., Workmen's Compensation, Sec. 33, p. 599; 82 A.L.R. 1244.
In line with the general authorities it was held in Baur v. Court of Common Pleas, 88 N.J.L. 128, 95 A. 627, that the granting of a lump-sum settlement must be governed by the law as it existed at the time of injury and not by the law as amended after the injury occurred.
In the second place appellant contends that the commission, by its order of May 29, 1950, endeavored to do indirectly what it lacked the power directly to do. Prior to Chap. 412, Laws 1950, there was no provision in the Workmen's Compensation Act for the granting of a lump-sum settlement for the purpose of paying an attorney's fee, nor authority for any such commutation to be taken from the unaccrued and periodic installments of compensation last to become due. It is conceded that the commission had the power to make a lump-sum settlement, in whole or in part, wherever it was for the best interests of a person entitled to compensation and also that the commission was the sole judge of whether a lump-sum payment was to the best interests of the claimant. The pertinent part of Subsection (j) of Sec. 13 of the original Act reads as follows: "Whenever the Commission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the commission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments computed, computed at four per centum (4%) true discount compounded annually. . . . The Commission shall be the sole judge as to whether or not a lump sum payment shall be to the best interest of the injured worker or to his dependents."
It is submitted that the above language does not authorize the commission to order a lump-sum settlement for the sole purpose of paying an attorney's fee, as distinguished from any purpose which would be to the best interests of the "person entitled to compensation", and further that in no event would the commission be authorized to declare a partial lump settlement and have the payment taken, not from the payments first to become due but from those last in order of time. We say that, especially with reference to the latter point, the action of the commission cannot be justified or upheld from the general language quoted from Sec. 13 but would have to find a specific basis in law, such as first came into being on April 6, 1950, by the adoption of the amendatory act.
If it was the custom of the commission under the original act to commute compensation to pay an attorney, it was a custom born and maintained wholly beyond statutory authority. But we pass to the more interesting and controlling question of whether a lump settlement made to pay an attorney's fee can be taken from the end of the future and unaccrued weekly compensation payments, as distinguished from requiring a carrier to accumulate such funds from the installments first becoming due. In this connection Subsection (k) of Sec. 13 recognized the right, wherever an employer (or his carrier) has made advance payments of compensation to reimbursement out of any unpaid installments of compensation due or to become due. If the commission had the power and authority to order a lump-sum payment of part of the compensation to pay an attorney's fee, should it not have, in all propriety, required the payment to be taken from the weekly installments first maturing, thereby placing the carrier in a position where it is not an insurer against the death of a dependent parent before the maturity of the last payments? In other words, the commission in the present case, on the one hand, requires appellant to make weekly payments to appellee without diminution in amount or frequency and, on the other, imposes a present duty to pay a substantial sum to appellee as an attorney's fee, repayable only out of future and unaccrued weekly payments for which appellant would not be liable in case of appellee's death prior to the maturity thereof.
We commend to the Court the reasoning of the Supreme Court of Alabama in Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.
Doubtless, it will be urged by appellee that the 1950 amendment added nothing to the power granted to the commission by the original Act but was merely declaratory thereof and she will rely upon the Georgia case of Employers Liability Assurance Corp. v. Pruitt, 190 Ga. 479, 9 S.E.2d 641. In that case the court refused to set aside the commutation taken from the end of the period where the statute provided that the board administering the Act had power to commute payment "in whole or in part". The Supreme Court of Georgia recognized that the order might require the carrier or employer to pay money which it otherwise might never have been called on to pay, and that this afforded a weighty consideration why the board should not have made the award in a partial lump sum. Nevertheless, it was held that the board had the implied power to so act. It is submitted that this decision accords too much by way of construction or implication and is not a sound view, especially where the matter under consideration is one of construing powers resting wholly upon statute.
Wright Glazier and Brunini, Everett, Grantham Quin, for appellee.
I. The workmen's compensation commission has the authority to grant a lump sum settlement for the purpose of paying the attorney's fees. Sec. 13(j), Sec. 21, Chap. 354 Laws 1948; Wims v. Hercules Contracting Co., et al., 235 Mo. App. 1, 123 S.W.2d 229.
II. The Mississippi Workmen's Compensation commission had authority to require the payment of said lump sum off the back end of the future payments to be last due the claimant. Secs. 13(j), 13(k), Chap. 354 Laws 1948; Employer's Liability Insurance Corp., et al. v. Pruitt, 9 S.E.2d 642; Wims v. Hercules Contracting Co., et al., supra; Hulo v. City of New Iberia, 153 La. 284, 95 So. 719.
As stated by the appellant, the sole issue is the authority of the commission "to make a partial lump sum settlement for the purpose of enabling a claimant to pay his attorney's fees, and have such payment plus the statutory discount deducted from future unaccrued and periodic payments of compensation last to become due". Appellant's brief, p. 2.
The workmen's compensation commission determined that it was for the best interest of the claimant to have the attorney's fees paid in one lump sum and taken off the back end of the compensation to become due. The appellant admits, "it is conceded that the commission has the power to make a lump sum settlement in whole or in part wherever it was for the best interest of a person entitled to compensation, and also that the commission was the sole judge of whether a lump sum payment was to the best interest of the claimant . . . While it is true that the original Act provided that the commission was the sole judge of whether a lump sum payment was for the best interest of the `injured worker or his dependents' this would not foreclose this Court from inquiring into the authority of its actions if the uncontradicted facts show that the commission acted to accomplish a purpose unrelated to the `person entitled to compensation' such as the payment of an attorney's fee".
The record of the testimony of the witnesses before the compensation commission is not before this Court, and we do not know what prompted the commission to determine that it was for the best interest of the appellee Mrs. Boykin to have her attorney's fees paid in a lump sum. It may have been that the commission deemed it to be to the best interest of the claimant to have her attorneys satisfied so that they would continue to look after her interests in the matter which is a continuing one before the commission, or it may have been that the commission did not desire to further reduce the very small weekly benefits which the appellee was receiving by taking therefrom a couple of dollars to apply each week on the $750.00 attorney's fees. The commission may have determined after hearing the evidence of Mrs. Boykin and the other witnesses that Mrs. Boykin was in immediate need of every cent of the compensation that she was to receive and that after a period of time she would be in a position where she could more readily forego the entire compensation in order to pay her attorneys, rather than to reduce at the present time her small weekly benefits.
Certainly, without the record it cannot be said or even claimed that the commission did not act for the best interest of Mrs. Boykin in awarding a lump sum payment. Only the record of the testimony of the parties who appeared before the commission could determine whether or not the commission acted to the best interest of the claimant, as it would be from the record that the needs of the claimant, Mrs. Boykin, would be shown.
The Order of the Workmen's Compensation Commission awarding compensation to Mrs. Boykin, the appellee, stated "that the deceased was primarily responsible for her medical and hospital bills for the past two years which she estimated at approximately $500.00", and further, "that she (Mrs. Boykin) had not enjoyed good health for a period of several years".
Possibly the commission was of the opinion that in a few years the health of Mrs. Boykin could possibly improve whereby her doctor bills would not be as great as they were at the time of the Order in December of 1949.
The appellant would have the Court write into the Act that although the commission was authorized to make a lump sum settlement, the commission must allow the appellant insurance company to apply the first compensation payments toward this settlement rather than the last. The Act itself does not state whether the payments from the first or the last weeks would be applied on the lump sum settlement. But as shown hereinabove, other courts with similar statutes have allowed the compensation commission to order the repayment of lump sums out of the compensation last to become due. Certainly the Legislature realized the problem, for they made provisions for taking into consideration the possibility of death of the claimant in arriving at the credit the insurer or employer would receive when making a lump sum payment.
The insurance carrier of the Long Staple Gin Company, under the Workmen's Compensation Act, Chapter 354, Laws of 1948, which was amended by Chapter 412, Laws of 1950, has challenged by this appeal the power of the Mississippi Workmen's Compensation Commission to order a partial commutation of the weekly compensation payments allowed to Mrs. G.P. Boykin as a dependent of her son who was injured and died as a result of an accident arising out of and in the course of his employment while working for the said gin company.
The partial commutation of the future compensation payments was to the extent of requiring the attorney's fee of $750 to be paid from the weekly payments last to become due the claimant; and the final order of the Commission which was appealed to, and affirmed by, the circuit court provided that the "partial lump sum settlement in the total amount of $750 be paid immediately by carrier to claimant, said amount to be paid in accordance with Section 13(j) of the Mississippi Workmen's Compensation Law, said total amount less the four per cent (4%) discount compounded as allowed by the Act to be deducted from future compensation payments to be last due the claimant, so as not to interrupt the continuity of compensation payments now or hereafter being made."
The order appealed from recites that the Workmen's Compensation Commission was of the opinion that "it will be to the best interest of claimant that the partial lump settlement be made."
Neither the liability of the carrier for the allowance of $10.80 in weekly installments to the dependent mother of the deceased employee nor the reasonableness of the attorney's fee is in question. The contention of the appellant is that since the accident occurred on September 30, 1949, and the award to the dependent was made for the weekly payments on December 8, 1949, the Commission had no power to require a lump sum payment of the future compensation payments, either in whole or in part, for the mere purpose of paying the attorney's fee allowed, for the reason that the original Act then in force did not so provide; that the Commission was also without power on May 29, 1950, to order a lump sum settlement of the attorney's fee from payments last to become due the claimant, since the provision of Chapter 412, contained under subsection (c) of Section 26 of the Laws of 1950, which was approved on April 6, 1950, has no retroactive effect as to claims which arose prior to the passage of the latter act.
The title of the said amendatory statute of 1950 recites its purpose as being "to liberalize and clarify the workmen's compensation law, * * *" meaning Chapter 354, Laws of 1948.
The provision of subsection (c) of Section 26 of Chapter 412, Laws of 1950, hereinbefore referred to reads as follows: "When an award of compensation becomes final, and an attorney fee is outstanding, a partial lump sum settlement sufficient to cover the attorney fee approved therein by the commission shall be made immediately, from payments last to become due, and the deductions allowed by the law shall be borne equally by the attorney and the client."
Subsection (j) of Section 13, Chapter 354, Laws of 1948, provides: "Whenever the commission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the commission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments computed, computed at four per centum (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation before the expiration of the period during which he is entitled to compensation shall be determined in accordance with the American Experience Table of Mortality, * * *".
Subsection (k) thereof provides that "If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due."
(Hn 1) We do not think that the provision of subsection (c) hereinbefore quoted from Section 26 of Chapter 412 of the Laws of 1950 has any reference to subsection (k) of Section 13 of Chapter 354 of the Laws of 1948, for the reason that it seems clear that said subsection (k) has reference to advance payments of compensation made by the employer to render temporary assistance to an employee or his dependent, pending the determination of the claim for compensation, and for which advance payments the employer would be entitled to be entirely reimbursed by the employee or his dependent, since there is no reason why any deductions from the payments, when allowed, "shall be borne equally by the attorney and the client," the attorney receiving no benefit from such advance payments.
(Hn 2) We have reached the conclusion that subsection (j) of Section 13, Chapter 354, Laws of 1948, fully authorized the Commission, if it thought it was for the best interest of the person entitled to compensation, to commute any part of the future compensation payments into a lump sum, either for the use of the employee or his dependent, as the case may be, or for the purpose of paying the attorney's fee, since we are unable to say that it is not for the best interest of the person entitled to the compensation that he be enabled to seasonably pay his attorney's fee, since Section 21 of the said Act provides for the continued jurisdiction of the commission to terminate, continue, reinstate, increase or decrease such compensation on the ground of a change in condition or because of a mistake in a determination of fact, within certain limitations, and which means that the attorney must stand by in readiness to protect the interest of his client as to any change that may be applied for by either party as to the previous award.
(Hn 3) A liberal construction of the said subsection (j) of Section 13 of that Act would require that the meager allowance of $10.80 per week to either an employee or his dependent should not be consumed in whole or in part in the payment of a commuted attorney's fee so far as the future payments first to accrue are concerned, if the Commission should find that it is to the best interest of the person entitled to the compensation that a partial lump sum settlement should be charged to the last payment to become due, and especially in view of the provision in the said subsection (j) to the effect that (Hn 4) the present value of future compensation payments are to be computed, if at all, "at four per centum (4%) true discount compounded annually", and also in view of the further provision that "The probability of the death of the * * * person entitled to compensation before the expiration of the period during which he is entitled to compensation shall be determined in accordance with the American Experience Table of Mortality * * *".
(Hn 5) The above two provisions would serve to take care of the objection urged in the case at bar that to require the attorney's fee to be paid out of the last payments to become due, would mean that the carrier might be compelled to thereby meet the payments for the entire period, even though the employee or dependent may die before the expiration of the period during which he is entitled to compensation.
Since an attorney's fee is part of the award to be made under the Workmen's Compensation Act in the sense that it is to be paid out of the amounts allowed, we are of the opinion that subsection (j) of Section 13, Chapter 354, Laws of 1948, gave to the Commission the power to adopt the order appealed from and that the provision of subsection (c) of the amendatory act of 1950 hereinbefore referred to is merely declaratory of, and intended to clarify, if need be, the power which theretofore existed; that the authority granted by the said subsection (c) does not increase or diminish the liability of the employer or its insurance carrier.
The case of Woodward Iron Company v. Bradford, 206 Ala. 447, 90 So. 803 is not in conflict with our holding in the present case. In that case the Alabama Workmen's Compensation Law would not permit a death claim to be commuted, in whole or in part, without the consent of the party or parties, which included the employer as well as the dependents, and such consent had not in that case been obtained. Nor did the statute contain the provisions hereinbefore referred to which appear in subsection (j) of Section 13 of Chapter 354 of our Workmen's Compensation Act of 1948. We, of course, recognize the correctness of the rule announced in 58 Am. Jur. 599, Section 33, that legislative enactments, in the absence of a clearly expressed intent to the contrary, shall be deemed to be prospective, and not retroactive, in respect of a matter of substantive right as to liability on claims arising by reason of prior death of an injured employee, but we are of the opinion that the power exercised in the case at bar already existed under the provision of the Workmen's Compensation Act of 1948 hereinbefore discussed.
The judgment of the circuit court in approving the order of the Commission appealed from must therefore be affirmed.
Affirmed.