
    PARKER v. INDUSTRIAL COMMISSION OF UTAH et al.
    No. 4316.
    Decided December 1, 1925.
    (241 P. 362.)
    1. Master and Servant — Review Limited to Determining Whether There is Competent Evidence to Support Finding op Commission. Court, in reviewing award of Industrial Commission, is limited to determining whether there is any competent evidence in support of findings or decision of commission.
    2. Master and Servant — That Widow Wholly Dependent Does not Prevent Finding Deceased Deft Dependent Minor Child. That widow claiming compensation Was wholly dependent on deceased for support did not, under Comp. Laws 1917, § 3140, subds. 2-4, as amended by Laws 1919, c. 63, and, section 3144, prevent Industrial Commission from finding and deciding that deceased also left surviving Mm a minor child, who was also dependent on him for support.
    3. Master and Servant — Industrial Commission Held to Have Acquired Complete Jurisdiction by Widow’s Application for Compensation, and Subsequent Application Merely Invoked Continuing Jurisdiction. Industrial Commission, on application of widow of deceased employee for compensation, thereby acquired complete jurisdiction, and subsequent application on behalf of minor son did not constitute an original application, but merely invoked continuing jurisdiction of commission, under Comp. Laws 1917, § 3144.
    4. Master and Servant — Industrial Commission May Exercise Continuing Jurisdiction - for Purpose of Modifying Prior Orders as to Distribution of Compensation. The Industrial Commission may, for the purpose of administering funds out of which compensation is paid to dependents of deceased employees, exercise its continuing jurisdiction for -full compensation period, and may make such modifications in its prior orders distributing compensation as facts may justify.
    5. Master and Servant — Industrial Commission Held Authorized to Apportion Compensation, Where, After Award to Widow, Minor Son Applied for Compensation. Where widow of deceased employee was awarded compensation, and thereafter minor son applied for compensation, held that, under Comp. Laws 1917, § 3144, Industrial Commission, on notice to all concerned and after full hearing, had power to apportion compensation at any time within compensation period; there being no attempt to increase compensation as against employer and insurance carrier.
    6. Master and Servant — Industrial Commission Mere Administrative Body. The Industrial Commission is á mere administrative body and not a court of justice, and may exercise such powers only as are either expressly or. by necessary implication conferred on it by statute.
    Corpus Juris-Cye. References.
    
       Workmen’s Compensation Acts, C. J. p. 122 n. 40.
    
       Workmen’s Compensation Acts, C. J. p. 40 n. 95; p. 59 n. 59; p. 99 n. 66 New; p. 132 n. 82 New.
    
       Workmen’s Compensation Acts, p. 132 n. 82 New; p. 146 n. 67.
    
      7. Master and Servant — Industrial Commission Cannot Require Beneficiary to Pay Compensation Back. Where compensation has been lawfully paid to one justly entitled thereto, the Industrial Commission is powerless to require recipient to pay it back.
    8. Master and Servant — Industrial Commission Held Without Power to Make Award to Minor Son, After Prior Award, Relate Back. Where Industrial Commission, without knowledge that deceased had left a minor son, awarded widow compensation as wholly dependent, held, that, under Comp. Laws 1917, § 3144, commission could not make payments of compensation subsequently awarded to son relate back to time of deceased’s death.
    Application by Bose Parker for a writ of review to review an order of tbe Industrial Commission, opposed by tbe Industrial Commission of Utab and others.
    Award ANNULLED in part, and approved and appirMBd in part.
    
      Willard Sanson and A. S. Sougaard, both of Salt Lake City, for plaintiff.
    
      Survey S. Cluf, Atty. Gen., J. Robert Robinson, Asst. Atty. Gen., and Walton, Walton & Nelson, of Salt Lake City, for defendants.
   FBICK, J.

Tbe plaintiff made application to this court for a writ of review to review an order or decision of tbe Industrial Commission of Utab, bereinafter called commission, wbicb order was entered on tbe 28tb day of July, 1925. Tbe facts, briefly stated, are these:

On October 16, 1923, one Albert Parker (who, tbe record shows, was also known by other names, to which reference will bereinafter be made) was employed in tbe mines of tbe Utab Apex Mining Company, bereinafter designated employer, as a miner in tbe underground workings of said mine. On tbat. day while so employed be was accidentally killed. Notice of tbe accident and death was duly given by the employer to the commission as required by our compensation statute. On the 3d day of December, 1923, the plaintiff herein made application for compensation in due form to the commission as the surviving widow and only dependent of said deceased. A hearing was duly had on the application of the plaintiff, after which, to wit, on the 17th day of December, 1923, the commission made its findings and decision that the plaintiff was the surviving widow of the deceased; that she was wholly dependent upon him for support, and made an award in her favor in the sum' of $16 per week for a period of “not to exceed 312 weeks, beginning October 17, 1923.” The payments accruing up to that time were ordered to be paid “in a luinp sum,” and thereafter the payments were to be made “-once every month.” Payments were ordered to be made either by the employer or by the JUtna Life Insurance Company (hereinafter called insurance carrier), as the insurance carrier. The payments were accordingly made by the insurance carrier until the 1st day of October, 1924, when the commission ordered payments suspended until the further order of the commission. . Payments were accordingly suspended. Just before' the payments were suspended one Susan Parker, living at Butte, Mont., made application to the commission for compensation as the surviving widow of the deceased. It was conclusively shown, however, that this applicant was not entitled to any compensation, and the commission so found and'decided. That application will therefore not be considered further. Shortly after Susan Parker’s application had been made there were also some letters filed with the commission on behalf of one Donald Klais, who, it was,claimed, was the son of the deceased by a former wife. It is contended on behalf of plaintiff that no formal application was ever made on behalf of said Donald Klais, that the letters did not constitute an application, and that in any event the application on his behalf, if one was made, was barred by the provisions of our statute. The commission overruled or disregarded all of the foregoing objections and proceeded to bear tbe evidence in support of tbe so-called application of Donald Klais, wbo will hereinafter be called Don. On that bearing it was made to appear that tbe true name of tbe deceased was Bertram Matthew Klais, commonly called Bert Klais; that be was married on tbe 21st day of March, 1907,'to one Beulah Hymer; that as the issue of said marriage a son was born either in 1908 or early in tbe year 1909, which son is tbe Don hereinbefore referred to on whose behalf said application was filed; that the deceased and his first wife separated in 1913, and that on October 11, 1916, she obtained a divorce^ from him and was awarded the custody of the child, Don, aforesaid; that Don was, by the divorced wife, abandoned in a hotel at Oakland, Cal., where the deceased found him, and he then took him into his custody and gave the custody of Don to one Mrs. Bale, who is the mother of the deceased and grandmother of Don; that the grandmother, who now lives in Colorado, has since then had the care and custody of Don, and, with contributions from the father, the deceased, has provided for Don and has maintained him in the public schools.

It may as well be stated at this point as anywhere that the plaintiff somewhat urgently insists that the evidence is insufficient to justify a finding that Bert Klais contributed funds for the support and maintenance bf Don, but, on the contrary, contends that the evidence shows that the deceased did not contribute to Don’s support, but had practically abandoned him. It is needless to attempt to set forth the evidence and inferences that may be deduced from certain facts appearing in the evidence which relate to that subject. It must suffice to say that if the commission believed the testimony of the grandmother, who appeared before them and testified, there is ample evidence, not only to justify a finding that the deceased contributed funds for the support of Don in the past, but that there was' at least some probability that he would have contributed further sums in the future if he was able to do so at least during the period of Don’s school days. We have so often held that all we have the power to determine in such cases is whether there is any competent evidence in support of the findings or decision of the commission that it has become elementary doctrine in this jurisdiction, and hence would be a work of supererogation to refer to the many cases wherein the rule is stated. We thus pass directly to the legal questions which are involved.

Were the letters filed on behalf of Don sufficient to authorize the commission to proceed to a hearing and determination of his so called application? The answer to the foregoing question depends somewhat on the meaning that is to be given to certain, sections of our so-called Compensation Act. Comp. Laws Utah 1917, § 3140, subd. 2, as amended by chapter 63, Laws Utah 1919, so far as material to this case, provides that in case there are wholly dependent persons at the time of the death of the employee such dependents shall receive 60 per cent, of the average weekly wages earned by him, “not to exceed a maximum of $16 per week,” and that such payments may continue for a period of six years, but in no event may exceed $5,000 for a single death. Subdivision 3 of that section provides that if the deceased leaves persons surviving him who were partly dependent upon him the same compensation may be awarded to them. Subdivision 4 of the section reads as follows:

“If there be wholly dependent persons and also partially dependent persons at the time of death, the commission may apportion the benefits as it may deem just and equitable; provided, that the total benefits awarded to all parties concerned shall not exceed the maximum provided for by law.”

The same section also provides who shall be considered dependents. It provides (Subd. 5) : “The following persons shall be presumed to be wholly dependent for support upon a deceased employee: (a) A wife upon a husband with whom she lives at the time .of his death. ’ ’ That section also provides that female children under the age of 18 years and male children under the age of 16 years shall be deemed wholly dependent “upon the parent with whom he is (they are) living at the time of the death of such parent.” It is further provided that — “In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury, resulting in the death of such employee. * * * ” Subdivision 5 (b).

In view of the foregoing provisions, in the absence of other dependents, the wife was therefore entitled to receive the maximum allowance, to wit, “$16 per week,” when she made application to the commission and when the award in her favor was made. She was entitled to that under the presumption stated in the statute as the surviving widow of the deceased. The evidence in the record is conclusive that neither when she married the deceased nor when she applied for compensation did she know that the deceased had a child or that he had theretofore been married. Upon the contrary the record shows that she in good faith believed that he left no child or other dependent, and that he had never been married. Her application was made in good faith and in total ignorance of the facts subsequently developed, namely, that the deceased was married, and that he was the father of a child which was the fruit of such marriage. The commission also acted in good faith in making the award and in the belief that the deceased left surviving him the plaintiff as his only dependent.

In addition to the foregoing provisions there is still another which requires consideration. Comp. Laws Utah 1917, § 3144, which is a part of the Compensation Act as originally adopted, reads:

“The powers and jurisdiction of the commission over each case shall he continuing, and it may from time to time make such modification or change with respect to former findings or orders * * * as in its opinion may he justified.”

Considering all of the foregoing provisions, it is, we think, quite clear that the mere fact that plaintiff was wholly dependent upon the deceased for support did not prevent the commission from finding and deciding that he also left surviving him a minor child which was also dependent upon him for support. Indeed, subdivision 4 of section 3140, supra, expressly provides that in case a deceased employee leaves one who is wholly dependent and also leaves one who is partially dependent the compensation may be apportioned between sncb dependents. Plaintiff’s counsel do not seriously contend that such is not the case, but they strenuously. insist that the letters filed with the commission did not constitute a sufficient application to invoke its jurisdiction, and, if it be held otherwise, that the application, nevertheless, was not presented within the time to prevent the claim from being barred under the former decisions of this court. We shall not devote any space to set forth even the substance of the letters to which reference has been made. It must suffice to say that if the letters in question had been filed as an original application for compensation the .question as to whether they were sufficient to invoke the jurisdiction of the commission might not be without difficulty. Upon that question, however, we express no opinion. The letters in question can, however, not be considered as constituting an application for the purpose of invoking the jurisdiction of the commission in an original proeeeding eeeding under the compensation statute. The commission obtained complete jurisdiction of the case upon plaintiff’s application. By making application on behalf of Don, the minor son of the deceased, nothing was invoked except the continuing jurisdiction of the commission which it has a right to exercise by virtue of the provisions of section 3144, supra. It has been held that an application to -modify or change prior orders of the commission pursuant to statutes similar to section 3144 did not constitute ‘1 a new proceeding’, but is based upon a jurisdiction acquired through the original proceeding. * * * ” Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171. Our section 3144 is a verbatim copy of section 74 of the New York Compensation Law (Consol. Laws, c. 67), and it has been frequently held by the New York courts that the provisions of section 74 relating to a continuing jurisdiction of the commission should be liberally construed. See Beckmann v. Oelerich, 174 App. Div. 353, 160 N. Y. S. 791; Kriegbaum v. Buffalo Wire Works, 182 App. Div. 448, 169 N. Y. S. 307, and other cases there cited.

If it had been sought to increase the compensation as against the employer or insurance carrier a different question might have arisen. Such, however, is not the case. All that was asked from the commission was to make a new apportionment of the former award so as to make the same conform to the statute in view of the newly discovered dependent. All the commission was called on to do, and all that it in fact did do, was to modify or change its former findings and order to meet the newly developed facts. There can be no doubt that for the purpose of administering the fund out of which compensation is paid to the dependents of deceased employees the commission may exercise its continuing jurisdiction for the full compensation period, and that it may make such changes and modifications in its prior orders in apportioning or distributing the compensation allowed by the statute as the facts may justify and as may be lawful and just. In such apportionment neither the employer nor the insurance carrier is directly interested, and hence neither has a voice in the matter. It has, however, directly been held by the courts that where a deceased employee leaves surviving him a wife who is wholly dependent upon him for support, and who also leaves a minor child by a former wife, the compensation may be apportioned between the wife and such child. Holmberg’s Case, 231 Mass. 144, 120 N. E. 353. If in the case at bar it had appeared from plaintiff's application that the deceased, in addition to the plaintiff as his widow, had also left surviving him Don, his minor child, no one, we think, would doubt that under the provisions of our statute the commission had full power to apportion the compensation between plaintiff and the son in accordance with the facts. If that be so, why may not the commission, in its continuing jurisdiction, modify its former orders respecting the payments so as to accomplish that result? We think that in a case like the one at bar where no at-' tempt is made to increase the compensation as against the employer and the insurance carrier the commission, upon notice to all concerned, and after a full hearing, has power to apportion the compensation at any time< within [he compensation period or until‘it has been fully paid.

It is, however, also contended by the plaintiff that the commission exceeded its power in requiring the payments in favor of Don to relate back to the time of the death of the deceased, and that by so doing has, indirectly at least, required the plaintiff to surrender or make restitution of a part of the compensation which had been paid to her. This question is not wholly free from doubt or difficulty. As has been frequently pointed out by this court, the commission is a mere administrative body-and not a court of justice. It may exercise such powers only as are either expressly or by necessary implication conferred upon it by statute; that is, it has no inherent power such as must frequently be exercised by courts of general jurisdiction. The question therefore arises whether where, as here, the full amount of compensation authorized by the statute has been awarded, to one who, like the plaintiff, was legally entitled thereto, and where there was no misrepresentation, fraud, or concealment on her part, and where all that was done was done in the utmost good faith, the commission has the power to compel the plaintiff to yield up, either directly or indirectly, any part of the compensation received by her. Plaintiff contends that, in view that the commission made the apportionment of the compensation effective from the death of the deceased, in legal effect she is required to yield up a part of the compensation received by her. . Upon the other hand, it is contended on' behalf of Don that such is not the effect of the commission’s decision, but the only effect is that the payments to plaintiff cease until such time as Don may have received his full share of the compensation, at which time her payments will be resumed. It certainly does not admit of doubt or dispute that if the present award of the commission stands the plaintiff will have less money for the period of time during which the original award was effective than she had when the payments were suspended. That being so, the award necessarily has a retroactive effect so far as she is concerned. Indirectly, therefore, she must yield a part of what she had lawfully and rightfully been paid. There is — there can be — no escape from this conclusion. Neither is there any doubt, we think, that where compensation has been lawfully paid to one justly entitled thereto the commission is powerless to require tbe recipient to pay it back. If sucb may not be accomplished directly, we cannot conceive bow it may be done indirectly. -We are of tbe opinion, therefore, that, in view of tbe facts and circumstances of this case, tbe commission, in making tbe award in favor of Don and tbe consequent apportionment thereof effective from tbe time of tbe death of tbe deceased, exceeded its power. No doubt when it was made to appear to tbe commission by tbe letters filed on behalf of Don that be claimed to be a minor child of and a dependent upon tbe deceased at tbe time of bis death it bad tbe power to suspend further payments until Don’s claim could be investigated and tbe real facts ascertained. This tbe commission did. It suspended payments commencing with October 1, 1924. At that time, however, plaintiff bad been paid tbe full amount of compensation allowed by tbe statute from tbe 17th day of October, 1923, or approximately 11% months. Tbe amount bad been legally awarded -and lawfully paid. Tbe order of October 1, 1924, respecting payment was therefore in tbe nature of a conditional modification of tbe former order of tbe commission whereby tbe full amount was ordered paid to tbe plaintiff. In view that a liberal construction of tbe provisions of section 3144 is required as hereinbefore stated, it is not unreasonable to conclude that tbe apportionment between plaintiff and Don should be made effective as of tbe 1st day of October, 1924, when tbe order of suspension was made. Up to that time tbe original order was in full force and effect, and tbe full amount of tbe compensation allowed by statute bad been paid to and received by plaintiff. We are of tbe opinion, therefore, that tbe commission was without power to make an apportionment as against tbe plaintiff without her consent effective prior to October 1, 1924, when tbe order of suspension was made. As before stated, tbe jurisdiction of tbe commission to apportion tbe compensation must be held to continue during tbe full compensation period. If it were held, however, that tbe commission bad tbe power to make tbe changes and modifications of its orders effective as of tbe date of tbe death of tbe deceased employee, that is, retroactively, then it would necessarily follow that it had the power to exercise judicial' powers not contemplated by the statute. Any one taking a comprehensive view of the subject may easily perceive various reasons why that cannot be done and ought not be permitted. It may be that where an applicant by deceit, fraud, or misrepresentation, or by other unlawful means, obtained an award in his favor to which he is not lawfully entitled the commission might find the facts, and that the injured dependent may have recourse to the courts to recover from the impostor the amount he has illegally received and is withholding from the true dependent. An order from the commission to that effect would, however, be a mere waste of time and effort.

It follows, therefore, that the commission exceeded its power in attempting to make the payments in favor of Don effective as of the death of the deceased and prior to October 1, 1924, when the order of suspension was made. The award to that extent must therefore be and it accordingly is annulled. As to all other features of the award, it is approved and affirmed; neither party to recover costs.

GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.  