Appeal from an Industrial Commission award. Reversed.
Applicant, Nielsen, after working for the Smelting Company for 10 days, was injured by a cave-in in 1952. Among other things he injured his knee. The company, as self-insurer, paid statutory compensation for a period of time under Sec. 35-1-66, Utah Code Annotated 1953,1 which provided for payment upwards of six years from the date of the injury. After he had been paid compensation periodically for a time under the statute, Nielsen requested and received a lump sum settlement of his claim in order to go into private business, which he did, and which he pursued until 1965, when he had his knee cap removed, in the process of which he suffered partial paralysis of his hands and arms because of operative or post-operative faulty blood circulation.
He filed a claim for further compensation, and an award was made apparently because of the decision of this Court in Utah Apex Mining Co. v. Industrial Commission,2 which decision cited Hardy v. Industrial Commission,3 as a precedent for the proposition that the date when compensation accrues is that date when disability occurs, i. e., on a casualty, not a calendar year basis, — or, in other words, upon discovery of an injury. The Apex observations with respect to this were dictum based on the Hardy decision, but the law of the Apex case strictly was based on an estoppel.
The Hardy case was decided in 1936 under the partial disability statute then existing,4 whose wording was as follows:
Where the injury causes partial disability for work, the employee shall receive during such disability, and for a period of not to exceed six years, etc.
At that time the temporary disability statute that immediately preceded the above section,5 read as follows:
* * * In no case shall such compensation continue for more than six years from the date of the injury
In 1939 the legislature amended the section on partial disability to read as follows :6
* * * the employee shall receive, during such disability, and for a period of not to exceed six years from the date of the injury, etc. * * *.
*241The Hardy case did not discuss the temporary disability statute, apparently because, although Mr. Hardy seemed to have been temporarily disabled as well as partially disabled, the court considered that the wording of the temporary ■ disability statute represented a true limitations statute, rendering uncompensable any disability developed more than six years after the date of the injury, or accident.
It seems inescapable to conclude other than that the 1939 legislature intended to meet the interpretation of the Hardy case by clearing up the question as to time when a claim must be presented, and to indicate that when an industrial accident occurs on a certain date, any disability resulting therefrom is compensable during six years after such accident occurred, and to make uniform the partial disability and temporary disability sections as to duration of payment of compensation.
It seems significant that the Apex case did not decide the issue posed in the Hardy case, and that there appears to be no Utah case to date that has or could have followed the latter case after the 1939 amendment, except on some rare occasion, such as voluntary conferral of authority to decide a matter as appears to be the case in Apex.
It seems significant also that in McKee v. Industrial Commission7 in a case involving the filing of a claim within three years 8 which provides that:
“If no claim for compensation is filed with the Industrial Commission within three years from the date of the accident or the date of the last payment of compensation, the right to compensation shall be wholly barred,”
the author had this to say:
“Regardless of the decisions rendered by this court prior to 1939, the law now* is that the limitation statute begins to run from the date of the accident or from the date of the last payment of compensation.”
In a concurring opinion in the Apex case, Mr. Justice Wolfe had this to say:
“Furthermore, there are comparatively few cases where disability arises more than three years after the accident or recurs three years after the last payment. And as to those cases the statute was meant to provide for a period after which the insurance carrier could safely cease to carry reserves against a definite accident. The matter of whether an over-all period of three years is too short is for the legislature. There will undoubtedly be cases of hardship *242where a man will suffer a residual disability from an old injury.”
We agree with both of these quotations and can see no difference in logic, philosophy or legislative intent since 1939, as to the six-year limitation.
Defendants in this case say that Sec. 42-1-72, Utah Code Annotated 1943 (35-1-78, Utah Code Annotated 1953) overrides the six-year limitation statutes when it says that:
“The powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings, or orders with respect thereto, as in its opinion may be justified.”
We have no quarrel with the above statute, but construe it to mean the Commission has continuing jurisdiction only during the period of the limitations statutes mentioned above,9 and has nothing to do with the abrogation of or exception to such limitations statutes. Our conclusion about legislative intent seems to be borne out by Sec. 35-1-78, U.C.A.1953, which allows for destruction of records after 10 years, at the discretion of the Commission.
We think the review in this case is well taken for several reasons: 1) The Apex case is not pertinent; 2) the three-year limitations statute is applicable; 3) the six-year statute is applicable, if, for no other reason than that Nielsen, in accepting the lump sum settlement at his own instance and request, did so in exchange for and in lieu of any six-year compensation to which he would be entitled, thus exhausting his claim; 4) that the three and six-year statutes are ones of repose, which we think the legislature intended should terminate, not encourage protraction of claims, — otherwise, an employer could and would be an insurer for the natural lives of its employees, based on real or imaginary discoveries of erstwhile latent injuries; 5) that the Workmens Compensation Laws were and are designed to provide sustenance to a . family for a statutory time until it can become readjusted in industry; and 6) that Nielsen, in his own application set both the date of injury and disability at the same time, so that really there is no problem as to dates of accident, disability or discovery. (Emphasis ours.)
CROCKETT, C. J., and CALLISTER and TUCKETT, JJ., concur.. See prior statutes, leading up to the Section: Sec. 42-1-62, Utah Code Annotated 1943 and 1933.
. 146 Utah 305, 209 P.2d 571 (1949).
. 89 Utah 561, 58 P.2d 15 (1936).
. Sec. 42-1-62, Revised Statutes of Utah 1933.
. Sec. 42-1-61, Revised Statutes of Utah 1933. (Sec. 35-1-65, U.C.A.1953).
. Chap. 51, Laws of Utah 1939. (Sec. 42-1-62, Utah Code Annotated, 1943).
. 115 Utah 550, 206 P.2d 715 (1949).
. See. 42-1-92, Utah Code Annotated 1943; Jones v. Industrial Commission, 17 Utah 2d 28, 404 P.2d 27 (1965).
. West’s Ann.Calif.Codes, Labor, Sec. 5410.