Chebot v. State Indus. Acc. Commission

• Decision Date: 20 February 1923
• Citation: 106 Or. 660,212 P. 792
• Parties: CHEBOT v. STATE INDUSTRIAL ACC. COMMISSION. [*]
• Court: Oregon Supreme Court

212 P. 792

106 Or. 660

CHEBOT v. STATE INDUSTRIAL ACC. COMMISSION. ^[*]

Supreme Court of Oregon

February 20, 1923

In Banc.

Appeal from Circuit Court, Multnomah County; Wm. N. Gatens, Judge.

Proceedings under the Workmen's Compensation Act by Mike Chebot for additional compensation for injuries. The petition was denied by the State Industrial Accident Commission but, on trial in the circuit court, judgment was rendered for the claimant and the Commission appeals. Reversed and remanded, with directions.

Burnett J., and McBride, C.J., dissenting.

James West, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen. on the brief), for appellant.

Henry S. Westbrook, of Portland, for respondent.

McCOURT J.

On August 20, 1915, the State Industrial Accident Commission made a final award to plaintiff for an injury to his right eye, suffered by him on May 4, 1915, while he was employed by the Sheridan Lumber Company at Sheridan, Or.

The award was made upon the basis of temporary total disability for 1 1/3 months, at the rate of $30 per month, and of permanent partial disability, consisting of 10 per cent. loss of function of one eye, to be compensated by monthly payments of $25 each for 2 2/3 months, or a total of $106.60; $54.77 of this amount had been paid at the time the final award was made, and the balance of $51.83 was paid to plaintiff, and his receipt in full taken therefor on August 20, 1915.

Plaintiff accepted the award granted him, under protest. Soon thereafter plaintiff left the state of Oregon, and did not return until early in the year 1921. In the interval, the Commission knew nothing of his whereabouts or the condition of his eyes.

On April 19, 1921, plaintiff filed with the Industrial Accident Commission a formal application, entitled "Petition for Additional Compensation." In his petition plaintiff represented that, from about the 1st of December, 1915, until about the 24th day of April, 1919, plaintiff was unable to do any steady work, and had to make his living by accepting charity, which consisted largely of being shipped from place to place by employment agencies, some of the cities to which he was shipped being Miles City, Montana, Chicago, Illinois, Buffalo, Utica, and New York City, New York, in which places he received assistance from the Salvation Army, Red Cross, and other like charitable institutions; that in April, 1919, his right eye was removed at a charitable institution in New York City; that his left eye at the time of presenting his petition was so inflamed and weak that plaintiff could stand no light upon it, and suffered continually; and that he is now incapacitated from performing any useful work or occupation, and fears that in a short time he will be totally blind, all as a direct and proximate result of the injuries sustained by him at Sheridan, Or., in May, 1915.

In the prayer of his petition, plaintiff demanded that his case be reopened, and that he be paid for the loss of his right eye in a lump sum, which he computed to be the sum of $850, less $50 paid him at the time of the original award in 1915, and also demanded that he be paid compensation as for a permanent total disability.

A hearing was had before the Commission on plaintiff's petition, and the same denied by the Commission. Plaintiff appealed to the circuit court for Multnomah county, where a jury trial was had which resulted in a verdict wherein the jury found the disability of plaintiff substantially as set forth in his petition, and that the same was caused by the original injury to his eye; also that plaintiff "is now permanently incapacitated from any work at any gainful occupation."

Since returning to Oregon, plaintiff has been, and is now, an inmate of the county poor farm, and his case was one that strongly appealed to the jury. Moreover, the evidence offered by plaintiff fairly tended to prove that his present disability developed from the original injury to his eye.

Judgment was entered by the court upon the above-mentioned verdict, in which judgment the decision of the State Industrial Accident Commission was reversed, and the Commission was ordered and directed to fix the compensation of plaintiff, and therein award plaintiff the sum of $800 in a lump sum, and also to award plaintiff further compensation upon the basis of a permanent total disability, or the sum of $30 per month. The Commission has appealed from the judgment and directions of the circuit court.

Before the matter came on for trial in the circuit court, the Attorney General, representing the Commission, interposed a motion to dismiss the appeal from the decision of the Commission, upon the ground that the Commission had not since August 20, 1915, made any appealable decision relative to plaintiff's claim for compensation, and that therefore the time within which plaintiff was entitled to appeal had long since expired. The court denied the motion, and that action is assigned as error.

The plaintiff bases his claim to further participation in the industrial accident fund and to an increase of compensation over that originally allowed by the Commission, upon the declaration of the statute that:

"The power and jurisdiction of the Commission 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." Subdivision (e), § 6632, Or. L.

And upon the following provision of the statute:

"If aggravation, diminution or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated in any case, the Commission may, upon the application of the beneficiary, or upon its own motion, re-adjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments." Subdivision (i), § 6626, Or. L.

The foregoing provisions are common to the compensation acts of all of the states, except perhaps Wyoming and New Hampshire (Schneider's Workmen's Compensation Law [1922] § 552), and they express the judicial construction placed by the English courts upon a clause embodied in schedule 1 of the English Act, authorizing a review of the original award and the allowance of increased compensation, when the circumstances of the workman have changed. Gibson v. Wishart, 30 Times L. R. 540 (1914); Tyne Tees Shipping Co. v. Whilock (1913) 3 K. B. (Eng.) 642, 109 L. T. R. 84 (1913); Cox v. Braithwaite (1912) 5 B. W. C. C. (Eng.) 648; Tynron v. Morgan (1909) 2 K. B. (Eng.) 66; Griga v. The Harelda (1910) 3 B. W. C. C. (Eng.) 116; Hunnewell's Case, 220 Mass. 351, 107 N.E. 934; notes L. R. A. 1916A, 163; L. R. A. 1917D, 186.

An application for increased compensation on account of changed condition or increased disability is not the beginning of a new proceeding, but merely another step in the proceeding which is initiated when the workman files his original application for the adjustment of his claim. Indianapolis v. Morgan (Ind. App.) 129 N.E. 644; Choctaw Portland Cement Co. v. Lamb, 79 Okl. 109, 189 P. 750; Kriegbaum v. Buffalo, 182 A.D. 448, 169 N.Y.S. 307; Fish v. Rutland R. Co., 189 A.D. 352, 178 N.Y.S. 439; Metcalf v. Firth Carpet Co., 196 A.D. 790, 188 N.Y.S. 448.

The statute provides no limitation of time within which increased compensation shall be allowed upon account of aggravation of disability or within which application therefor shall be made, unless section 6632, Or. L., contains such a limitation. That section reads:

"(a) Where a workman is entitled to compensation under this act, he shall file with the commission his application for such compensation on blanks furnished by the Commission.

"(c) If change of circumstances warrants an increase or re-arrangement of compensation, like application shall be made therefor. No increase or re-arrangement shall be operative for any period prior to application therefor.

"(d) No application shall be valid or claim thereunder enforceable in non-fatal cases unless such claim is filed within three months after the date upon which the injury occurred. * * *"

The statute gives the Commission general jurisdiction over the industrial accident fund and over the employers and employees contributing thereto, and special jurisdiction over the particular case of an injured workman, when such workman filed with the Commission his application for compensation. By force of the statute, the jurisdiction thus acquired continues as long as that workman suffers disability, the proximate cause of which reasonably may be traced to the injury for which claim for compensation was originally made and compensation awarded thereon. Bethlehem Ship Building Corp. v. Ind. Acc. Com., 181 Cal. 500, 185 P. 179, 7 A. L. R. 1180.

It has been suggested that the three months' limitation contained in the statute, within which application must be filed, governs the right of a disabled workman to call into action the powers of the Commission to grant increased compensation, where increased disability has developed, or a change in the status of the workman calling for increased compensation has arisen. Such a construction, however ignores the plain provisions of the statute which impose upon the Commission a legal duty to regulate the compensation to be awarded the injured workman by the development of his disability or change in his family status; the exercise of that power by the Commission and the discharge of that duty in the very nature of things, arises in most instances months and even years after the three months' period following the occurrence of the injury has elapsed. But it is said that such a construction does not deprive the Commission of power to act in...