Cicrich v. State Industrial Accident Commission

• Decision Date: 05 July 1933
• Citation: 143 Or. 627,23 P.2d 534
• Parties: CICRICH v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

23 P.2d 534

143 Or. 627

CICRICH v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

July 5, 1933

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Matt Cicrich filed an application with the State Industrial Accident Commission for additional compensation for the aggravation of an injury. The Commission denied the application, and applicant appealed to the circuit court where a judgment was rendered for the Commission, but the court granted a new trial, and the Commission appeals.

Affirmed.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., and Victor R. Griggs, Asst. Atty. Gen., on the brief), for appellant.

Walter T. McGuirk, of Portland (McGuirk & Schneider and Irvin Goodman, all of Portland, on the brief), for respondent.

BEAN, Justice.

On August 23, 1930, the plaintiff, Matt Cicrich, received an accidental injury in the course of his employment with the Panama Cooperage Company. He made timely application to the State Industrial Accident Commission for compensation; his claim was allowed; final award was made by the commission March 2, 1931. The commission found, as stated in the brief that he was entitled to be paid three months and eighteen days time loss and a permanent partial disability for loss of function of his body equal to approximately 15 per cent. loss of an arm, or sixteen months' compensation. No appeal was taken from this award.

On September 4, 1931, plaintiff timely filed an application for additional compensation for aggravation of his injury, since the award on March 2, 1931. The commission denied this application for aggravation on September 25, 1931. After an application for rehearing, which was denied on October 21 1931, by the commission, plaintiff appealed to the circuit court, alleging, among other things, that the plaintiff, since the application for additional compensation for aggravation, is permanently disabled and will continue for the rest of his natural lifetime to suffer a permanent partial disability and loss of function of his back, spine, muscles, nerves, hips, arms, shoulders, head, neck, and body generally, and the conditions arising out of said accidental injury and the injury to his nerves of 75 per cent. permanent partial disability and loss of function of an arm, and an additional temporary total disability of five months over and above that temporary total disability hereinbefore awarded to plaintiff; that he has an inability to follow the regular work that he has been accustomed to follow or to do any work since the date of the application herein and for a long period of time previous thereto; that the conditions of his injury have not improved since March 2, 1931, nor since the payment of permanent partial disability and temporary total disability, but, on the contrary, have grown worse than said injuries were on that date; that he has an inability to sleep at night or use his arms or to work for any extended period, and is exceedingly weak.

The answer of the commission admitted six paragraphs of the complaint and notice of appeal, the denial of the petition for rehearing, and denied the other allegations contained in the complaint. The cause was tried before the circuit court and a jury February 23, 1932. A verdict was returned for the State Industrial Accident Commission. After a judgment had been entered thereon, the plaintiff filed a motion for a new trial, assigning the following grounds:

"1. The irregularity in the presenting of the motion to the court for an examination by another physician and presenting and arguing and urging said matter before the jury which caused a prejudice and preventing the party from having a fair trial.

"2. On the further ground and for the further reason of the insufficiency of the evidence to justify the verdict of the jury, and that said jury was against law.

"3. Said defendant urging matters which had been determined in the prior ruling of said commission, which matter had become res adjudicata and which tended to confuse the jury and to cause them to consider matters that had previously been determined.

"4. Errors at law occurring at the trial and excepted to by the plaintiff.

"The introduction of testimony of conditions antedating the application for additional compensation for aggravation.

"Admission of immaterial testimony having to do with the original condition and things that had been terminated by reason of the failure to appeal from the original order and which were permitted to be considered by the jury on the aggravation and urged by the defendant, and the consideration of things by the jury that have been established by the prior findings of the commission to the damage of the plaintiff herein, also the total absence of any contradictory evidence to plaintiff's physical condition and the evidence introduced in support thereof."

Plaintiff did not file any affidavits in support of his motion. On April 25 the court granted a new trial. From this order the State Industrial Accident Commission appealed. Defendant assigns error of the court in granting a new trial.

It is not our purpose to consider or comment upon the merits of the case. We refer to the testimony only in so far as we think it has a bearing upon the motion for a new trial.

Upon the trial Dr. Harvey J. Clements, an eminent physician and surgeon connected with the medical staff of the State Industrial Accident Commission, testified, as a witness for defendant, in part to the effect that on September 18, 1931, he examined and X-rayed the plaintiff. This was about six months after the final award. The plaintiff was sent by the office of the commission to Dr. Clements for a general examination as to his present condition, and he described the condition in which he found the plaintiff as follows: That the X-ray showed no evidence of fracture or dislocation of the bones of the back; that there was some congenital abnormality, at least developed abnormalities; the fifth lumbar vertebra is ankylosed to the sacrum; that is, set down very low in the pelvis, and doubtless has made more or less of a stiff back; that there were also some irregularities on the bodies of the lumbar vertebræ and a number of the irregularities on the transverse processes, "the conditions we speak of as arthritic, osteo-arthritic-chronic rheumatism, in other words"; and that appellant was very profuse in his complaints.

Dr. Murray M. Levy, a skilled physician and surgeon of fifteen years' practice, testified as a witness for defendant. Dr. Levy had special training and experience in diseases of the nerves, and was connected with the University of Oregon Medical School at that time. He had known defendant for about seventeen years and treated him for minor ailments. He was the attending physician in this case, and testified that the plaintiff complained of the accident, that he was treated for pain on he left side low down at the level of the fourth and fifth lumbar, and the size of that soreness was about five centimeters, and he was treated for several weeks with physio-therapy by the ordinary methods, and heat treatments, and did not seem to be getting any better. He made a complete neurological examination of him, which he detailed, and "there was nothing that could be found from an organic standpoint." An X-ray picture was taken of him also. He reported plaintiff's injury to the State Industrial Accident Commission as follows: "Lower last rib torn cartilage. Injury also to muscles over this area. Date of first treatment Aug. 25, 1930."

Dr. Charles R. McClure, a physician and surgeon of thirty years' practice, specializing in orthopedic surgery, a witness for defendant, saw plaintiff first on October 4, 1930, and at one other time. He made an examination of the plaintiff and prescribed treatment and made a report to the commission. He testified that plaintiff exhibited nothing "that we could visualize as denoting that there was any injury present of any kind," and gave other details. In regard to his inability to raise his arm, he stated: "There is no basis for that. That is about as far-fetched a supposition as a person could draw on their imagination."

Dr. L. H. Holland and Dr. A. O. Schmitt testified as witnesses for plaintiff. At the commencement of the trial, counsel for defendant stated that he made a request some six weeks before for an examination of the plaintiff. It appears that Dr. Rockey had made an examination for the State Industrial Accident Commission, although he was not a member of the medical staff, but at the time of the trial he was absent in California and not available as a witness. Counsel for defendant stated that "the plaintiff has refused to submit to such an examination," and asked the court for an order directing this plaintiff to submit to a physical examination at the hands of an orthopedic specialist to be selected by the court, and made quite an extended argument in favor of the request. Counsel for plaintiff stated, in effect, that they had never at any time opposed a legitimate examination of the plaintiff; that there had been many examinations made; that the commission, while they have a man under their care and custody, have him examined by any physician whom they see fit; that by letter of October 7, 1931, plaintiff was directed to report to Dr. Rockey for a special examination, which he did; that plaintiff's position was that there had been ample examination made on both sides to submit any evidence; that the effort would tend to embarrass the plaintiff in the case; and that there was no necessity for any further examination. The court, in the exercise of its discretion, denied the motion.

Defendant submits that "circuit courts have authority, in litigation involving...