Dodd v. State Indus. Acc. Commission
| Citation | 211 Or. 99,310 P.2d 324 |
| Parties | Lamar H. DODD, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent. |
| Decision Date | 01 May 1957 |
| Court | Supreme Court of Oregon |
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.
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 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 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 accident on August 7, 1951, sustained by the plaintiff while doing his regular work for his employer, Morrison-Knudsen Co., Inc. The following statement of how the accident happened and its cause was given: 'Throat was irritated by smoke from hot tar.' On September 19, 1951, the commission wrote the plaintiff as follows:
'The application you filed with this office meets the requirements of the Occupational Disease Law and your claim has been accepted on that basis.
'We are enclosing a form 'Workman's Claim for Compensation Occupational Disease Only' and would appreciate it if you would complete Part 1, returning the form to the Commission in the self-addressed envelope enclosed.
'The rate of compensation payment for an occupational disease or infection is the same as for an accident.'
A form for a claim under the Occupational Disease Law was sent to the plaintiff, who filled it out and signed it and filed it with the commission on September 25, 1951. The claim stated that the plaintiff's symptoms, which first appeared on August 1, 1951, were 'irritated throat with hoarseness and cough,' and described the disease from which he was suffering, and stated the way he believed it came from his employment as follows: 'Infected throat caused from fumes off the paint and working in so much dust and heat.' On October 17, 1951, however, the commission received from the plaintiff another accident claim, which gave the date of the accident as September 28, 1951, and, in answer to the question 'Describe how accident happened and give cause,' said 'Strong fumes from hot tar irritated bronchial tubes.' On December 14, 1951, the commission again wrote the plaintiff, informing him in the identical language of its letter of September 19, 1951, that his application met the requirements of the Occupational Disease Law and the claim had been accepted on that basis. Again, the commission sent to the plaintiff a form of claim under the Occupational Disease Law, which again the plaintiff executed. Therein he said that his symptoms were 'Infected bronchial tubes--constant cough--soreness in chest--tiredness,' and described the disease and stated in what way he believed that it came from his employment as follows: 'Bronchial trouble, caused from fumes off the hot tar we used.' This renewed claim for compensation for occupational disease was received by the commission on December 17, 1951, and on December 19 the commission made an order in writing which it mailed to the plaintiff on the same day and which reads: 'The commission finds that the claimant having suffered temporary total disability from 10-1 herewith closes claim with payment to 11-12-51.'
On December 19, 1952, the commission, by order in writing on its own motion, reopened the plaintiff's claim for occupational disease contracted on or about September 28, 1951, 'for a payment of compensation for temporary total disability from date closed to July 7, 1952, less time worked during that interim, and claim left open until further order of the Commission.' A copy of this order was mailed to the plaintiff under date of December 23, 1952. On March 23, 1953, the commission entered an order in writing which, after reciting the terms of the order of December 19, 1952, further recited that 'said claimant's condition is stationary' and ordered on its own motion 'that compensation for temporary total disability be terminated as of July 7, 1952, and that payment to that date shall constitute full and final settlement of the claim.' A copy of this order was mailed to the plaintiff on March 26, 1953. On April 15, 1953, the commission wrote the plaintiff as follows:
'The Commission has received a letter from Dr. O. A. Welsh of Medford, Oregon regarding the closure of your claim.
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