310 P.2d 324 (Or. 1957), Dodd v. State Indus. Acc. Commission

Citation:310 P.2d 324, 211 Or. 99
Party Name:Lamar H. DODD, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
Case Date:May 01, 1957
Court:Supreme Court of Oregon

Page 324

310 P.2d 324 (Or. 1957)

211 Or. 99

Lamar H. DODD, Appellant,

v.

STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon,

Respondent.

Supreme Court of Oregon, En Banc

May 1, 1957

Argued and Submitted Feb. 27, 1957.

Page 325

[211 Or. 100] C. S. Emmons, Albany, argued the cause for appellant. On the brief were Hugh B. Collins, Medford, and Willis, Kyle & Emmons, Albany.

Earl M. Preston, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

LUSK, Justice.

This case involves an attempted appeal to the circuit court from a decision of the defendant, State Industrial Accident Commission. The court, at the conclusion[211 Or. 101] of the testimony, allowed a motion to dismiss, interposed by the defendant, based on the ground that the circuit court was without jurisdiction of the appeal, and the plaintiff has appealed. We preface our statement of the facts by a brief reference to the Occupational Disease Law, ORS 656.802-656.990, both inclusive, which was passed in 1943. General Laws of Oregon 1943, ch. 442. Generally, this law provides that an occupational disease, as defined, 'is considered an injury for employes of employers who have come under' the provisions of the Workmen's Compensation Law. ORS 656.804. An 'occupational disease' means:

'(1) Any disease or infection which is peculiar to the industrial process, trade or occupation in each instance and which arises out of and in the scope of the employment, and to which an employe is not ordinarily subjected or exposed other than during a period of regular actual employment therein.

'(2) Silicosis. 'Silicosis' means a disease of the lungs caused by breathing silica dust (silicon dioxide) producing fibrous nodules, distributed through the lungs and demonstrated by X-ray examination or by autopsy.' ORS 656.802.

The procedural provisions differ widely from those of the Workmen's Compensation Law. Under the latter a dissatisfied claimant may appeal from a final order of the commission to the circuit court, where he is entitled to a trial by jury de novo. ORS 656.284-656.288, both inclusive. But under the Occupational Disease Law the only appeal is to a medical board, whose findings are provided to be final and binding. ORS 656.808-656.814, both inclusive.

Both in their brief and on the argument counsel [211 Or. 102] for plaintiff devoted much of their time to a contention that the effect of these provisions thus limiting the right of review of the commission's rulings is to render the Occupational Disease Law unconstitutional. We are of the opinion, however, that the case can be disposed of without deciding the constitutional question, and we shall, therefore, in obedience to firmly established rules, refrain from doing so.

The record, insofar as it bears upon the jurisdictional question, discloses the following facts: On August 15, 1951, the commission received an accident claim signed by the plaintiff, based upon an alleged...

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