Dimitroff v. State Indus. Acc. Commission

• Decision Date: 23 January 1957
• Citation: 209 Or. 316,306 P.2d 398
• Parties: Juhn DIMITROFF, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of The State of Oregon, Appellant.
• Court: Oregon Supreme Court

Page 398

306 P.2d 398

209 Or. 316

Juhn DIMITROFF, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of The State of Oregon,

Appellant.

Supreme Court of Oregon, in Banc.

Argued Nov. 20, 1956.

Decided Jan. 23, 1957.

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

Ben Anderson, Portland, argued the cause for respondent. With him on the brief were Anderson, Franklin & O'Brien, Portland.

BRAND, Justice.

This is an appeal by the defendant State Industrial Accident Commission from a judgment of the circuit court favoring the plaintiff in an action brought under the provisions of the Workmen's Compensation Law. ORS 656.002 et seq. Plaintiff sustained personal injury by accident arising out of and within the course of his employment and became entitled to benefits under the Workmen's Compensation Act. His claim was approved and he was granted compensation for temporary total disability. Thereafter and on 29 November 1954 his claim for compensation was closed with an award for permanent partial disability equal to 25 per cent loss of function of an arm for an unscheduled disability. Being aggrieved by the order of 29 November 1954 plaintiff filed a petition for rehearing which was denied by the Commission on 9 March 1955, and a final order affirming the previous order was made. Plaintiff then filed his complaint in the circuit court, alleging:

'That plaintiff was and is aggrieved by defendant's order of November 29, 1954 and said order is unjust, unfair, and erroneous in that plaintiff received a ruptured spleen and injuries to the muscles, ligaments, tendons, nerves and soft tissues of his back. That as a result thereof plaintiff is unable to control his bowel movements, he is unable to do any walking or lifting; that he suffers severe pain in the back in the neighborhood of the spleen; that plaintiff underwent surgery for the removal of the spleen, and he is totally unable to perform any work, and therefore asks that his claim be reopened and he be paid temporary total disability until his condition becomes stationary, and when his condition becomes stationary, then he will be entitled to compensation for permanent partial disability equal to 100% lost function of an arm for unscheduled disabilities.'

Defendant Commission denied the allegations concerning plaintiff's disabilities but admitted that plaintiff had undergone surgery for removal of the spleen. The cause was tried by a jury. A special verdict was returned whereby the jury found that the plaintiff's physical condition proximately resulting from his accident of 28 July 1954 was not stationary when his claim was closed on 29 November 1954 and was not stationary at the time of trial on 22 March 1956. Judgment was entered for plaintiff and the cause was remanded to the defendant Commission 'for the purpose of paying to the plaintiff compensation in accordance with the terms of the verdict.' Plaintiff had judgment for an attorney's fee and costs, and the defendant Commission appeals to this court.

Defendant assigns as error the following instruction which was given by the court on its own motion:

'Now, satisfactory evidence--I probably have been a little different than some courts. I take the position that plaintiff is under no burden to prove anything in this case. He comes here and he submits the facts as he sees them, and he has no burden to overcome anything, but whatever your findings may be, they must be based upon satisfactory evidence, and satisfactory evidence is that which ordinarily procuces moral certainty or conviction in an unprejudiced mind. Whatever you find the facts to be in this case, you are to act upon them.'

To instruct the jury that plaintiff had no burden of proof was clearly contradictory to the law and was prejudicial to the defendant. The statutes provide:

'The party having the affirmative of the issue shall produce the evidence to prove it. Therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side.' ORS 41.210.

'Each party shall prove his own affirmative allegations. * * *' ORS 41.240.

'The jury * * * are * * * to be instructed by the court on all proper occasions:' ORS 17.250.

'That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence; * * *.' ORS 17.250(5).

The evidence in the pending case presented such a 'proper occasion'.

As said in Gray v. Wassell, 138 Or. 274, 4 P.2d 625-627.

'The Legislature of the state enacted into law these plain provisions of the Code; they need no construction; and this court has no power to change or nullify them.'

Plaintiff was required to produce satisfactory evidence upon the contested issue in the case, i.e., evidence 'which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence.' ORS 41.110. It is also significant that the statute governing appeals from an order of the Industrial Accident Commission provides: 'The case thereafter shall proceed as other civil cases in the court; * * *.' ORS 656.288(3).

As we have previously held, these provisions are plain and need no construction. Gray v. Wassell, supra. The burden is on the plaintiff to prove his case with reasonable certainty. Goldfoot v. Lofgren, 135 Or. 533, 296 P. 843; Spicer v. Benefit Ass'n of Ry. Employees, 142 Or. 574, 17 P.2d 1107, 21 P.2d 187, 90 A.L.R. 517; Metropolitan Casualty Ins. Co. of New York v. N. B. Lesher, Inc., 152 Or. 161, 52 P.2d 1133; Hutchison v. Aetna Life Insurance Co., 182 Or. 639, 189 P.2d 586; Lemons v. Holland, 205 Or. 163, 284 P.2d 1041, 286 P.2d 656. The fact that this is an action under the Workmen's Compensation Act does not render any different construction applicable. We have repeatedly held that a claimant under the Act has the burden of proof to show that he is entitled to compensation. Anderson v. State Industrial Acc. Comm., 107 Or. 304, 215 P. 582; Vient v. State Industrial Acc. Comm., 123 Or. 334, 262 P. 250; March v. State Industrial Acc Comm., 142 Or. 246, 20 P.2d 227; Hisey v. State Industrial Acc. Comm., 163 Or. 696, 99 P.2d 475; Dickison v. State Industrial Acc. Comm., 165 Or. 306, 107 P.2d 104. The erroneous character of this instruction could not fail to result in prejudice to the defendant, and this is not cured by viewing the instruction as a whole.

This appeal presents a further question. The defendant moved for a nonsuit, and at the close of the case, for a directed verdict, and thereafter for judgment n.o.v. All three motions were denied. It is contended (1) that there was a failure of proof of any causal connection between the present alleged disabilities and the accident of 28 July 1954; (2) that there was no testimony offered in plaintiff's case as to the necessity of any further medical treatment for any condition causally connected with the accident; (3) that there was uncontradicted testimony by two qualified physicians that no further treatment was required as a result of the original injury; and (4) that the verdict of the jury was of necessity based upon mere speculation and conjecture. In support of these contentions it is argued that this is the type of case in which medical testimony supporting plaintiff's allegations was essential and that there was no such testimony. If the defendant is entitled to prevail upon these issues, then we would be required to enter judgment for defendant rather than to remand the case for a new trial. As bearing upon these issues we first observe that plaintiff does not seek compensation for permanent total disability though he alleges that he is 'totally unable to perform any work.' He seeks only an award for temporary total disability 'until his condition becomes stationary', and thereafter an increased award for 'permanent partial disability.'

The statutes, divorced from any administrative gloss are, to the judicial eye, exceedingly vague. The meaning of total disability may be gathered from the definition of permanent total disability by eliminating the element of permanency. So far as this case is concerned, total disability thus defined is a disability arising from 'such paralysis or other condition * * * incapacitating the workman from regularly performing any work at a gainful and suitable occupation.' ORS 656.206. 'Temporary total disability' is not defined. The statute merely says, 'When the total disability is only temporary, the workman shall receive * * *', etc. ORS 656.210. Permanent partial disability includes loss of some member of the body (inapplicable here) and 'any other injury known in surgery to be permanent partial disability.' ORS 656.214. This is not a case in which plaintiff by his complaint seeks increased compensation under ORS 656.276 for aggravation of his disability subsequent to the last award. The complaint must be construed in the same manner as complaints in other actions.

In Coblentz v. State Industrial Accident Commission, 203 Or. 258, 279 P.2d 503, 504, this court held:

'Insofar as pleadings are concerned, a court action based upon the Workmen's Compensation Law stands upon the same footing as any other action.

ORS 656.002 et seq.' Headnote 8. The pending case is a simple appeal to the circuit court and thence to this court from the order of 29 November 1954. We turn to the evidence.

The testimony of the plaintiff may be summarized as follows: Prior to 28 July 1954 plaintiff was in good health and was steadily employed. Upon that date an air hose under heavy pressure became disconnected and struck plaintiff in the back, knocking him down. He could feel that he was 'bleeding inside.' He said, 'it bust my spleen.' He was taken to the hospital and Dr. Fox operated and ...