(concurring in part and dissenting in part): Although it seems to me the law should permit a review of an award for permanent partial loss of a scheduled injury or for a similar loss of its use I am persuaded such a review is not permitted under the present law. I, therefore, concur in that portion of the opinion. Under these circumstances no review of the scheduled injury portion of the instant award could be had irrespective of whether final payment on that part of the award had been made or not.
This leaves the sole issue whether claimant filed his petition in time to obtain a review and modification of the other part of the award for thirty-eight weeks temporary total disability. That disability of thirty-eight weeks ended in August, 1949, about eight weeks after the award was made. No appeal had been taken from the award. The result is the award for temporary total disability *521became a finality in August, 1949. According to the award temporary total disability had ended on that date. No petition for review was filed before that part of the award had become a finality. Full and final payment for the period of temporary total disability was made and accepted by the claimant in August, 1949, as it is conceded he accepted all payments on the total award until the last payment was due thereon in January, 1950. Under these circumstances there is no sound basis, in my opinion, for concluding a review was available as to that part of the award when the petition for review was first filed in April, 1950. Had this been a single original award for general temporary total disability, followed by permanent partial disability of a reviewable award it seems to me an entirely different issue would be presented with respect to the question of final payment.
But if we were able to overcome this first obstacle to a review we are immediately met with another difficulty pertaining to the right of review. It pertains to the expiration of the total compensable period of 62.85 weeks without filing a petition for review within that period and a refusal to accept the final payment which the law compelled the employer to make. Without attempting a review of the facts and decisions in our various previous cases, which has been exceedingly well done in the annotation at 165 A. L. R. 429-444, I have no hesitancy in saying we have never allowed a review under circumstances and issues raised such as those obtaining in the instant case. I think a fair interpretation of our compensation act discloses it was intended a claimant or respondent should have a right to file a petition for review and modification of an award which extended into the future at any time within the period of adjudicated disability in order to prevent the award from becoming a finality.
The statute does not say a petition for review and modification may be filed after the disability under the award has ended and the award has become a finality. It merely authorizes a hearing on a petition for review at any time before final payment but not thereafter. (Bailey v. Skelly Oil Co., 153 Kan. 378, 110 P. 2d 746.)
In Hardin v. Beck Mining Co., 166 Kan. 95, 199 P. 2d 186, it was said:
“The doctors naturally are not able to tell exactly how long a disability of a person will last. The compensation law takes care of that, however, by providing for review of an award at any time before final payment. (See G. S. *5221935, 44-528.) This section was available to respondent at any time before the expiration of one hundred weeks.” (p. 97.) (Italics supplied.)
Although the foregoing statement may not have been necessary to a decision in the Hardin case I believe it was a correct statement of legislative intent. In this connection and only as helpful and not as conclusive see, also, Williams v. Lozier-Broderick & Gordon, 159 Kan. 266, 154 P. 2d 126, and Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P. 2d 639.
In any event it seems to me it was never intended a claimant who had not appealed from an award for disability extending into the future should be permitted to let that award become a finality, fail to file a petition for review during such period of adjudicated disability, arbitrarily refuse to accept three offers of final payment thereafter and then file a petition for a review approximately three months after the total award (both awards in the instant case) had become a finality. If a review is permitted under such circumstances I fail to understand on what logical theory any award cannot be kept from becoming a finality indefinitely. If it can be prevented from becoming a finality for two or three months after disability under the award has ended why not for six months, a year, or longer?
I am convinced such a dilatory practice was never intended to be permitted by either the claimant or the employer. Our compensation act is indicative of the legislative intent to effectuate promptness and to bring about finality with respect to proceedings thereunder. For example the law expressly provides a penalty against the employer if he fails to make installment payments when due. If he fails to make such a payment and the employee serves' notice on him to pay, as provided by statute, and the employer fails to do so within two weeks after service of the notice file employee is permitted to bring an action and recover a judgment for the entire amount of future payment as for a debt. (G. S. 1949, 44-512a.) It is also observed the employer is entitled to a final receipt upon final payment which must be filed in the office of the commissioner within sixty days after its execution. If the employer fails to so file it the final receipt is void as against the workman. (G. S. 1949, 44-527.)
Yet under the instant decision the claimant although he filed no petition for a review of the award before the disability under the total award had ended and although he arbitrarily refused to accept final payment, which the law compelled the employer to make when due, the claimant is being permitted to file a petition for review *523almost three months after the disability under the award had ended. I cannot believe our compensation act was intended to permit such a practice.
I readily admit a draft or a check does not in all cases constitute a legal tender of payment. But is a claimant under the provisions of our compensation act permitted to defeat the intent and purpose of our law by arbitrarily refusing to accept a final payment under an award, as it was offered to him here, after he has permitted the award to become a finality? The same question might be submitted with respect to any other installment payment under an award.
Appellee does not contend final payment was not attempted at the same time, place and in the same manner as his wages were payable or as he previously had accepted all other installment payments. In fact his brief contains no contention the final offer of payment was inadequate for any reason. In any event our legislature obviously attempted to eliminate technicalities with reference to what constitutes legal tender of payment in compensation cases. G. S. 1949, 44-512, not considered in Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056, but heavily relied upon by appellee, expressly provides:
“The payments shall he made at the same time, place and in the same manner as the wages of the workman were payable at the time of the accident, but the commissioner upon the application of either party may modify such regulation in a particular case as to the commissioner may seem just.”
The record does not disclose the commissioner made any order relative to payments. Under the record of this case we need not labor any question pertaining to technicalities of legal tender of paymént which might be applicable in other cases. Where tender of payment is sufficient to constitute payment under provisions of a compensation act the tender is sufficient although refused. For a helpful discussion of the question here involved see Bajerczak v. B. H. Sobelman & Co., 89 F. Supp. 78, 80, and Imperato v. Lowe, 123 F. 2d 1001.
Price, J., joins in the foregoing concurring and dissenting opinion.