Novak v. CJ Grossenburg and Son

*319 COLER, Justice

(dissenting).

I agree with Justice Wollman that we should affirm. The validity of the release was not raised by the pleading; no evidence was produced to support such a claim and it was neither briefed nor argued. On page 5 of the appellant’s brief this statement appears: “The claimant has not challenged the validity of this release * *

It may be that in the future, with the words “by accident” removed from SDCL 62-1-1(2), that the claimant would have a valid claim. Further, as Justice Wollman’s dissent points out, to sustain claimant’s theory in this case would require this court to give retroactive effect to the 1975 amendment to SDCL 62-1-1(2).

Of equal significance, I believe, is that the opinion, in overruling the dicta in Chittenden v. Jarvis, 1941, 68 S.D. 5 , 297 N.W. 787 , which may be desirable, does not go far enough but merely implies that the commissioner should have set aside the release or is empowered to do so. If this is to be done sua sponte, why not go all the way and grant the commissioner equity powers to set aside the release, a la dissent of Judge Hayes in Pulcifer v. Carlson Builders, 1948, 72 S.D. 130 , 31 N.W.2d 239 , and thereby overrule Chittenden, Pulcifer, Nilsson v. Krueger, 1941, 68 S.D. 11 , 297 N.W. 790 , and any other prior decision that implies that the exercise of equity powers rests solely with the court and is not impliedly vested in the commissioner? As it stands now the commissioner, as he found in this case, cannot delve into the question of the validity of a release and, as Judge Hayes points out in Pulcifer, a separate lawsuit is necessitated, constituting both waste and risk of loss of jurisdiction by the commissioner. 1

Further, I do not agree that we are in any way justified in adopting the so-called Massachusetts-Michigan rule on successive injury. We should look to our own law on the subject. I think by adopting the so-called majority rule, which is not the majority rule but the subject of statutory provisions varying from state to *320 state, we ignore the plain mandate of SDCL 62-4-29. It appears to me that this statute authorizes the department to prorate the loss among carriers in cases such as the one' at bar. I would not foreclose its further use barring direct challenge.

Other states have found no great difficulty in apportioning the loss among insurers (See Note 23, 3 Larson’s Workmen’s Compensation Law, § 95.31) and the application of SDCL 62-4-29 should be no more agonizing than the application of our comparative negligence statute, SDCL 20-9-2. Further, the legislature has materially changed the second injury fund coverage under SDCL 62-4-34 to protect employers and insurers in an attempt to reduce harsh consequences such as those created by the majority opinion. Ch. 322, § 6, S.L.1975.

The statement in the majority opinion that the Massachusetts-Michigan “harsh rule,” 3 Larson’s Workmen’s Compensation Law, § 95.31, is the majority rule, and by implication, that the rule of those states is established by force of decision is incorrect. I submit that the quotation from 3 Larson’s Workmen’s Compensation Law, § 95.00, which is an oversimplified “restatement,” does not support that proposition nor does his subsequent text. As a practical matter the Michigan rule stemmed from a decision of the Michigan court in Brinkert v. Kalamazoo Vegetable Parchment Co., 1941, 297 Mich. 611 , 298 N.W. 301 , and is cited by Larson as his authority. That case relied on Massachusetts decisions, namely, Evans Case, 299 Mass. 435 , 13 N.E.2d 27 and Falcione’s Case, 305 Mass. 433 , 26 N.E.2d 308 . The Michigan court did not rely on the Rock’s Case, 1948, 323 Mass. 428 , 82 N.E.2d 616 , the Massachusetts case which Larson cites in Note 64 under § 95.11, as holding the first insurer liable, contrary to the statement in the majority opinion. The Rock’s Case hinged on the issue of independent intervening force which became operative without relation to the previous injury as did the Michigan case cited. Under circumstances falling within this test the employer last in line was liable.

The Michigan legislature reacted to this harsh rule by enacting an apportionment statute, C.L.1948, § 417.9, Mich.. Stats.Ann. 1960 Rev. § 17.228. After the statute was declared unconstitutional in Benton Harbor Malleable Ind. v. General *321 Motors Corp., 1960, 358 Mich. 684 , 101 N.W.2d 281 , and Trellsite Foundry & Stamping Co. v. Enterprise Foundry, 1961, 365 Mich. 209 , 112 N.W.2d 476 , the legislature attempted to amend that provision to meet the court’s objections and apparently had done so. See 3 Larson’s Workmen’s Compensation Law, § 95.32, p. 508.162. It appears, however, that the legislature gave up the fight and their present statute 2 parallels somewhat the prior court rule. It is the statute, however, which now controls in Michigan as should SDCL 62-4-29 in this case.

Massachusetts, subsequent to the Rock’s Case, on the other hand, enacted provisions relative to compensation for subsequent injuries whether or not they were in the same employ. 3

I feel the significance of the decisions from other states is lost in this case when you consider that depending upon whether the *322 injury relates back to the 1967 injury or is found to be an independent nonrelated injury in 1969 or, in the alternative, is found to be a continuing or progressing injury, the law governs, not decisions of this or some other court. The concern of the commissioner under our law must be to determine the date of injury, for the amount of the claimant’s award for compensation would be different if the injury occurred after July 1, 1969, under SDCL 62-4-6(21), as enacted by Ch. 287, § 1, S.L.1969, than it would have previously been under SDCL 62-4-5. The majority opinion offers no guidance to the commissioner considering the theory advanced by the claimant.

If we are willing that the commissioner have equity power to set aside the release we should so hold. Absent such a holding I would affirm.

. This disposition would not be an unreasonable extension of the holding of this court'in Vodopich v. Trojan Mining Co., 43 S.D. at p. 547, 180 N.W. at p. 967. See annotations following SDCL 62-7-33.

. Michigan Statutes Annotated § 17.237(301) in part reads as follows:

“Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.”

. M.G.L.A. c. 152 § 35B. Compensation Payments for Subsequent Injuries.

An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury. 4 — C Mass. 1974 Supp.

In a recent case, In Re Sutherland’s Case, 1974, Mass.App., 308 N.E.2d 775 , the court sustained that portion of the reviewing board’s determination that allowed recovery by relating back to the first injury which I read as consistent with Rock’s Case but inconsistent with the Massachusetts cases used by Michigan in support of their decision. The Massachusetts court ratified the review board member’s decision to the effect that:

“ ‘[T]he chargeability for the whole compensation to which the employee may be entitled . . . rests on the insurer covering the risk at the time of his most recent injury that bears causal relation to the disability claimed' (emphasis in the original).” In Re Sutherland’s Case, 1974, Mass.App., 308 N.E.2d 775 .

They cite in support of that statement an earlier case, Trombetta’s Case, 1973, Mass.App., 294 N.E.2d 484 .