American Railroad Co. v. Industrial Commission

DISSENTING ¡OPINION OF

MR. CHIEF JUSTICE DEL TORO

In my opinion the decision of the Industrial Commission conforms to the applicable law as the same was construed by this court in Montaner, Mgr. v. Industrial Commission, 59 P.R.R. 398 and it should therefore be affirmed.

The facts are clearly and definitely set forth in the first paragraph of the majority opinion, as follows:

‘ ‘ On July 9, 1941, the petitioner employer filed his report of wages corresponding to the. fiscal year 1940-41 and o'n 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 Decm-ber 20 to pay the said amount; The employer did not pay for ‘he first semester until January 20, 1942. On March 9 he paid $8,499.07 for the second semester.”

.And applying the statute to those facts I find it an inescapable conclusion that the employer through his own fault upon paying the first semester of his policy, fulfilled its obligation so late that the insurance was not effective during that period and upon paying the second semester, likewise outside the statutory term, but within the semester, rendered the same effective, only after making payment.

In said case of Montaner, Mgr. v. Industrial Commission, we held that:

“The Workmen’s Accident Compensation Act, approved April 18, 1.935 (Session Laws, p. 250), established in Puerto Rico a compulsory and exclusive insurance system for compensating workmen and employees who may be injured, become disabled, or die as the result of industrial accidents. Under section 18 thereof, every employer who employs more than four workmen 'shall be, obliged to insure said workmen or employees in the State Insurance Fund, the compensation that they should receive for injury, etc.’ Failure to comply with the above, obligation will render him liable for misdemeanor (section 17).
*311“Section 25 directs tbe Manager of tbe State Fund,to assess and levy on every employer covered by tbe act animal premiums on the total amount of wages paid by said employer to bis workmen during the year prior to tire levying of the premiums. Tbe same section provides that tbe premiums shall be collected semi-annually in a&uanee, and provides further:
“ . . Should an employer fail to pay tbe total amount of the premiums legally levied on him tuithm the time fixed by the Manager, the latter may grant an extension of thirty (30) days so that the employer may make the payment, which payment shall be an indispensable requirement so that the Manager may make any insurance policy effective.
t* * * * =» s *
‘Any employer subject to the provisions of this Act during awy part of a semester shall pay the premium for the whole of said semester, but he shall be entitled to such reimbursement, if any, as provided in the following section:.’ (Italics ours.)
“Section 26 prescribes the procedure to be followed by the manager at the end of each fiscal year for the liquidation of the policies and readjustment of the premiums. If the payroll for the last year is less than that of the preceding year, which served as a basis for assessing and collecting the premiums, the manager shall refund the difference to the employer; otherwise he shall collect any additional necessary premiums.
“Section 27 provides, among other things, that the insurance of each employer shall become effective immediately after the filing of the payroll or duplicate statement, ‘together with the amount of the premiums corresponding to the percentage of the wages declared in said statement, in accordance with the rates fixed by the manager’;
“ ‘. . . Provided, That any accident that occurs before payment of said premiums is made shall be considered as a case of unmswred employer unless the employer pays within the term fixed by the Manager of the State Fund, in which case, the insurance shall begin to run from the date on which the. employer filed the payroll or statement in the office of the Manager.’ (Italics ours.)
“The foregoing statutory provisions are so clear that their application to the facts of the instant case offers no difficulty. The employer duly filed, on July 15, 1939, the statement of wages and salaries paid during the previous fiscal year, 1938-39. In compliance with his duty, the manager assessed the premiums for the year 1939-40, and granted the employer until September 10, 1939, to make the first' *312half-yearly payment. The insured failed to apply for an extension of the term fixed by the manager, allowed the. said term to expire, and finally paid the amount of the first half-yearly premium 45 days after the expiration of such term, that is, on October 24, 1939.
“From a consideration of the facts and circumstances above set forth and of the statutory provisions applicable to the same, we must hold: That as the payment of the premiums within the term fixed by the manager is an indispensable requisite to enable the manager to make effective any insurance policy, the policy in the case at bar became effective on October 24, 1939, when the first half-yearly payment was made; that as the accident occurred on August 23, 1939, before the first half-yearly payment for 1939-40 was made, and as such payment was not effected within the term fixed by the manager, which expired on September 10, 1939, said accident is and must be considered as one pertaining to an uninsured employer; and, finally, that the employer is not entitled to the refund sought by him, first, because under section 25, supra, the payment of premiums must be made for full semesters, and, second, because, the only refund that the manager is empowered to make is the one that, according to section 26, supra, must, be made at the end of each year for the liquidation of policies and readjustment of premium rates.
“The employer in the instant case could have rendered his policy effective from the filing of the payroll by paying the premiums within the term fixed by the manager or within any extension thereof that the latter might have granted. He failed to do so and must, therefore, suffer the consequences of his delay in making such payment.” Montaner v. Industrial Commission, 59 P.R.R. 398, 400-403.

All tlie foregoing should in my opinion be upheld because it is the strict construction of the law. And once this is upheld, the case can not be decided in the way the majority of the judges of the court have decided it.

It deals with an obligatory annual insurance, the premium of which must be paid in advance semester payments. The payment of the premiums and the penalties fixed by law itself are two independent and distinct things. Payment must always be made. The employer itself admitted this. When, on January 20, 1942, after having been granted an extension until December 20, 1941, it made its first payment, it earmarked it, as it was bound to do, for the first semester, *313audit was to that first semester that the State Insurance Fund applied it. And when on March 9, 1942, also untimely, it made payment for the second semester the same was applied to the second semester.

March 10, 1943

That the payment thus made only operated to revive its policy from March 9, 1942, is a fact of which it had to be aware in view of the language used in the statute.

The question involved herein is not of an insurance on a new busines begun in the second semester of a fiscal year, but of an employer which had been insured for previous years whieh filed its pay roll on July 9, 1941, that is, at the beginning of the fiscal year as provided by law, and based on this report the computation of the insurance premium which it was bound to pay was made, which premium it paid after the expiration of the statutory period and therefore it only operated as compliance with the obligation of payment but not as rendering the policy effective for the period during whieh payment had not been made, which is one of the penalties imposed by law.