I agree that there was no competent proof of combined disability in excess of 10 per cent to the body as a whole, the basis of the award against the Fund, and the award for 20 per cent permanent partial disability to the body as a whole or 100 weeks' compensation must be vacated. I cannot agree, however, that the Fund is not a necessary party to a joint settlement in a case where it is liable.
While the appeal from the order of the trial commissioner to the commission en banc was pending, the employer and claimant executed and filed a joint petition for final settlement. By this joint petition, the claimant and the employer proposed to settle the claim for injury to the foot for $455. The joint petition was presented to the commission for approval, as therein stated, without prejudice to the rights of the claimant against the Special Indemnity Fund and subject to the continuing jurisdiction of the commission over the claim against the Fund. Over the objection of the Special Indemnity *Page 8 Fund, the joint petition was approved by order of the commission entered on the 5th of June, 1945. (The appeal to the commission en banc from the order of the trial commissioner was still pending.) In the order approving final settlement, it is provided that the payment of $455 should be "in full, final, and complete settlement of any and all claims which claimant now has or may hereafter have against respondent or insurance carrier by reason of said injury, but that this cause remain open as between the claimant and the Special Indemnity Fund."
The Special Indemnity Fund contends that the award against it thereafter entered by the commission on appeal to the commission en banc was erroneous and void because the commission lost jurisdiction of the entire claim by reason of the settlement on joint petition, it having no power to retain jurisdiction of a part of the claim based upon the compensable injury.
By 85 O.S. 1941 § 84[85-84], the jurisdiction and power of the commission is usually continuing, and it may make such modifications or changes with respect to former findings or orders as, in its opinion, may be justified. However, it is also provided by the foregoing section that the commission may take jurisdiction to consider joint petitions between the parties for final settlement. As to the extent and finality of its jurisdiction and authority in this respect, the section provides:
"If the commission decides it is for the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly and the commission may make an award that shall be final as to the rights of all parties to said petition, and thereafter the commission shall not have jurisdiction over any claim for the same injury or any results arising from same."
The section, supra, contemplates a final, full, and complete settlement of all claims and issues arisen or that might thereafter arise, contingent or otherwise, out of a compensable accident forming the basis of a claim for compensation. In view of the sweeping language of the statute, complete jurisdiction of the claim for compensation, contingent or otherwise, is lost upon final settlement on joint petition.
The liability of the Fund is contingent upon combined disability resulting from new and compensable injury and the old, pre-existing disabling condition, whatever its origin. The liability of the Fund, therefore, is absolutely dependent upon the result of the compensable injury in combination with old, pre-existing condition.
I think the public policy of the Workmen's Compensation Law and the interests of all parties to a compensation case would be promoted and better served if we held, as I think the Legislature intended, that the joint petition section of the statute contemplates that all parties severally liable to pay an award for compensation, in whole or in part, shall agree and sign the joint petition; that the Legislature contemplated that the Workmen's Compensation Law might be, after the enactment of the section relative to joint petitions, amended so as to create additional liabilities or provide a different method of payment of awards and bring in new parties severally liable; that the Legislature intended that in the event new parties severally liable should be created, the joint petition provision should apply to such parties; that the Special indemnity Fund Act has the effect of creating a new and several responsibility for the payment of a portion of an award made under the Workmen's Compensation Law and the act relieves the employer of part of the liability theretofore existing under the Workmen's Compensation Law; that the jurisdiction of the commission to approve a joint petition settlement can be invoked only by a petition of agreement signed by all the parties severally liable to pay compensation awardable; that in all cases where the Special Indemnity Fund Act is applicable, *Page 9 the Fund is a necessary party to a joint petition for final settlement and without its signature, the authority of the commission to approve same and make final settlement is not invoked.
I, therefore, respectfully dissent to our holding that the Special Indemnity Fund was not a necessary party to the joint petition approved in this case.