(dissenting).
I dissent.
In this case Paul D. Nielsen sustained a compensable injury in 1952. He was awarded compensation at the rate of $30.25 *243per week for a period of 124% weeks. The payment for the last 54 weeks was discounted at 3 per cent compounded annually and paid to him in a lump sum. Almost 13 years later the old injury to his knee flared up, and he had his knee cap removed, along with other operative procedures on his leg, on April 12, 1965. The plaintiff herein paid the expenses of that operation. However, complications arose because of the operation, and he has sustained ulnar injuries amounting to 13 per cent of the total man. The testimony before the Industrial Commission warranted a finding that the ulnar disorder resulted from the knee operation, and the knee operation was a result of the com-pensable injury sustained in 1952. At a hearing on May 4, 1966, the Industrial Commission ordered the plaintiff herein to pay 24 weeks additional payments of $30.25 each.
Before the Commission the plaintiff denied liability because, among other things, the statute of limitations had run and the Commission exceeded its authority in making the order.
The question we have to determine then is the interpretation we should place upon Section 35-1-66, Utah Code Annotated 1953, which so far as material here was Section 42-1-62, Utah Code Annotated 1943. That section in substance provides: “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 from the date of' the injury, a weekly compensation, # * ‡ if
A similar matter was before the Supreme Court in the case of Utah Apex Mining Company, et al, v. Industrial Commission, et al, 116 Utah 305, 209 P.2d 571. In that case one Petersen sustained in-, juries on May 20, 1931, while an employee of the Utah Apex Mining Company.. There was a dispute as to whether or not the Industrial Commission had jurisdiction, to make an award. That dispute was not material to the part of the case in which we are now interested. Petersen continued in the employ of Utah Apex Mining-Company until 1938 and submitted himself to a doctor generally once a month. The doctor testified that the leg was never entirely free from infection during any of this period. On December 29, 1947, the doctor informed the Utah Apex Mining Company that he had hospitalized Petersen because of osteomyelitis of the left leg and that this condition was a residual' of the original injury.
The Utah Apex Mining Company contended that the Industrial Commission could not act in the matter because Petersen’s right was barred under the provision-of Section 42-1-61, R.S.U.1933, which statute applied to the recovery of temporary disability and so far as material reads. *244as follows: “In case of temporary disability the employee shall receive 60 per cent of his average weekly wages so long as such disability is total * * *. In no case shall such compensation continue for more than six years from the date of the injury.”
At page 311 of the 116 Utah Reports, at page 574 of 209 P.2d this court said:
Section 42-1-61 must be read in the light of 42-1-72 R.S.U.1933. That statute provides that the jurisdiction of the Commission in compensation cases shall be continuing without mention of any period of time after which that jurisdiction shall come to an end. That statute provides:
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 he justified.
The case of Hardy v. Industrial Commission, 89 Utah 561, 58 P.2d 15, 17, is instructive of the manner in which these sections are to be resolved. In that case it was urged that under 42-1-62, R.S.U.1933, the Commission lost jurisdiction upon the expiration of six years from the date of the injury. The principal difference between that statute and the section preceding it, which is the statute here involved, is that Section 62 announces the law applicable in cases of partial disability whereas Section 61 covers cases of temporary disability. However, the statutes are, in substance, identical when we limit our consideration to the provision that payment of compensation shall not continue for more than six years from the date of the injury. Inasmuch as this is the only provision in either statute with which we are here concerned, the reasoning of this court in that case is applicable here. We there held that the provision that payment of compensation should not continue for more than six years from the date of the injury was only meant to fix the period during which payment is to extend, that is, the disability period, and that it was not in conflict with 42-1-72, supra, which provides that the jurisdiction of the Commission shall be continuing. We there said:
We discover no conflict between section 42-1-62 and section 42-1-72, supra. The latter section is one relating to jurisdiction only. The former relates to the amount to be paid and the period during which the payment shall extend. “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” the compensation *245provided for by the statute. Reading the whole section, it is apparent the part under consideration and last above quoted has the same effect and meaning as though it read: “When the injury causes partial disability for •work, the employee shall receive, .during such disability * * * not to exceed six years, the compensation ¡specified.”
'The limitation provided by the section relates to the disability period and •not the calendar period dating from the injury.
The facts in the case of Hardy v. Industrial Commission. cited above are as follows:
Hardy sustained a compensable injury ,on October 25, 1927. His insurance carrier assumed liability and paid compensation including the necessary medical expenses incurred in healing the injury. At the conclusion of the period of temporary disability and at the time applicant was .discharged, it was recommended by the attending physician that a further operation be performed. The insurance carrier agreed at that time, to wit, during the winter of 1929 and 1930, to pay the costs of such operation ordered to be performed. However, the operation was not performed at that time and was not called to the attention of either the employer or its insurance carrier until more than six years had elapsed after the initial injury and only after the application had gone to another surgeon and had the operation performed. The insurance carrier was then requested to pay for the operation and other medical care incident to the operation. Hardy made application for further compensation, all of which was after the elapse of more than six years from the date of the injury.
The insurance carrier denied liability and claimed that Section 42-1-62, R.S.U. 1933, which is now 35-1-66, U.C.A.1953, prevented the Commission from making an award after the expiration of six years from the date of the injury.
In disposing of the contention, this court at page 567 of the Utah Reports, at page 17 of 58 P.2d used the following language:
It would be an unusual construction to say that an employee injured by accident in the course of his employment should be denied compensation because an injury had apparently been surgically cured, but which was in fact quiescent for a period and without an additional injury, but, in the course of progress of the injury, it again became a disability precluding remunerative employment, that the employee should be denied compensation for the subsequent period. Some injuries apparently only temporary become permanent, and disabling injuries for a period may be partial and *246then become total. Injuries thought to be total may become temporary and even complete recovery may result. * * *
In the instant case, the application and the hearing thereon, acceptance of liability by the carrier placed the matter under the jurisdiction of the commission, and whether there were express findings or an award or not, the commission had power and jurisdiction to make or deny an award as the merits of the case might determine.' It is just as important that the commission should have an opportunity to reconsider its findings or to make findings if the making of findings has been temporarily unnecessary because of agreement as it is to review and consider its findings on a previous award when new conditions required the exercise of the continuing jurisdiction conferred by the statute.
In that case the Industrial Commission had refused to make an award because it assumed the position now taken by the plaintiff herein. The order of the Industrial Commission was vacated, and the cause was remanded for further proceedings.
I think these two cases dispose of the contention made by plaintiff and require us to hold that the six-year limitation is: a limitation upon the number of payments: which can be made to an injured workman and has nothing to do with when-payments must be stopped. To hold otherwise would lead to a unique situation if the-injury was not disabling for a period of five years, and by the time the hearings, were terminated the six-year period would have passed. Such could not have been in-contemplation of the Legislature in enacting the statute.
It should also be noted that the Industrial Commission has interpreted the statute involved herein to mean casualty years- and not a period of limitation, and since-this holding of the Commission has been-continuous for some 27 years, the Legislature by not changing this statute would, have given its tacit approval to the interpretation placed thereon by the Commission. Of course, if the holding of the Commission was clearly at variance with' the law, we would not hesitate to strike it' down, although long acquiescence might' have been given to the interpretation. Irr. this case I think the interpretation placed' by the Commission is correct, and the order of the Commission should be affirmed-