Garner v. State Ind. Acc. Com.

• Decision Date: 27 June 1939
• Citation: 162 Or. 256,92 P.2d 193
• Parties: GARNER v. STATE INDUSTRIAL ACCIDENT COMMISSION
• Court: Oregon Supreme Court

162 Or. 256

92 P.2d 193

GARNER v. STATE INDUSTRIAL ACCIDENT COMMISSION

Supreme Court of Oregon.

Argued May 24, 1939.

Affirmed June 27, 1939.

Workmen's compensation — Industrial Accident Commission — Hearing

1. Under statute concerning application for rehearing before Industrial Commission, the commission has full power to hear and determine all questions within its jurisdiction.

Workmen's compensation — Accident Commission — Rehearing

2. Under statute concerning application for rehearing before Industrial Commission, whenever any order, decision or award pertaining to any claim has been made, the commission must promptly serve claimant with a copy thereof by mail addressed to claimant's last-known address as shown by records of commission.

Workmen's compensation — Accident Commission — Procedure

3. Under statute concerning application for rehearing before Industrial Commission, the commission is authorized to deny application and confirm its previous decision or award if in its opinion it has previously fully considered all matters raised by such application, or, if evidence on file with commission sustains applicant's contention, commission may allow relief asked in the application or order a rehearing to decide issues raised.

Workmen's compensation — Accident Commission — Rehearing

4. Under statute concerning application for rehearing before Industrial Commission, if a rehearing is granted, commission must consider all facts including those arising since making the order, decision or award involved and must enter such order as the facts and law warrant.

Workmen's compensation — Accident Commission — Proceedings

5. The law contemplates that proceedings before the Industrial Commission shall be in writing.

Workmen's compensation — Award — Appeal

6. When a claimant appeals to circuit court from a decision or award of Industrial Commission, the commission's record of the case must be filed in circuit court and must leave nothing to conjecture, either relating to claim or commission's action regarding it.

Workmen's compensation — Final order — Rehearing

7. When an order intended to be final has been made by Industrial Commission, a workman who has not within 60 days

thereafter filed a written petition for rehearing cannot question a recital in an order thereafter made to the effect that such subsequent order was made by commission on its own motion.

Workmen's compensation — Final order — Rehearing

8. In compensation case, claimant's assertion that a certain order of Industrial Commission was based upon claimant's oral objections to a previous order, rather than upon commission's own motion as recited in order in question, was unavailing where claimant did not file written application for rehearing within 60 days after the previous order.

Workmen's compensation — Appealable order

9. Where order entered by Industrial Commission merely diminished an additional award previously made by commission on its own motion, such order was not an "appealable order" within statute authorizing appeal from any order of commission which diminished or terminated a former award if former award was not entered by commission on its own motion.

                  See 28 R.C.L. 826 (8 Perm. Supp., 6252)
                

In Banc.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Proceeding under the Workmen's Compensation Act by George H. Garner, claimant, opposed by the State Industrial Accident Commission. From a judgment of the circuit court granting the commission's motion for a judgment of involuntary nonsuit, claimant appeals.

AFFIRMED.

H.E. Slattery, of Eugene (Slattery & Slattery, of Eugene, on the brief), for appellant.

Oliver Crowther, Assistant Attorney General (I.H. Van Winkle, Attorney General, and C.S. Emmons and H. Lawrence Lister, Assistant Attorneys General, on the brief), for respondent.

BAILEY, J.

The plaintiff, George H. Garner, on March 4, 1936, received an accidental injury arising out, and in the course, of his employment, and on March 13 filed an application with the State Industrial Accident Commission for compensation. The commission on the day the application was filed awarded him compensation for temporary total disability. On May 25, 1936, the commission found that the disability suffered by the plaintiff by reason of the accident on March 4 ended on May 4, 1936, and that he had theretofore been fully compensated for the disability which he had sustained, and closed his case.

Later, on June 16 of that year, an order was entered, on the commission's own motion, it was therein stated, reopening the case and awarding the plaintiff further compensation from June 6 of that year until the further order of the commission. On July 7 of the following year another order was entered by the commission, in which it was recited that the order of June 16, 1936, had been entered on the commission's own motion, and on the commission's own motion then further ordered, "that compensation for temporary total disability be terminated as of July 6, 1937, and that said claimant be awarded permanent partial disability of 10 per cent loss of function of a leg, in settlement of disability arising out of said claimant's injury of March 4, 1936."

The next order of the commission in this matter was entered October 16, 1937. In that order it was stated:

"It is hereby ordered on the commission's own motion that the claim of George H. Garner be and the same is hereby reinstated for payment of compensation for temporary total disability from September 7, 1937, until the further order of the commission.

"It is further ordered that payments on award for permanent partial disability heretofore made, be and the same are hereby suspended, while said claimant is drawing compensation for temporary total disability."

On January 14, 1938, the commission entered an order reading in part as follows:

"It is hereby ordered on the commission's own motion that compensation for temporary total disability be terminated as of January 11, 1938, and that said claimant be made an additional award for permanent partial disability equivalent to 20% loss of function of the right leg, in full settlement of all disability resulting from an injury sustained by said workman on March 4, 1936.

"It is further ordered that balance of payments on original award for permanent partial disability be and the same are hereby released."

In this order the commission refers to its prior orders, stating that the order of July 7, 1937, and the one dated October 16, 1937, had been entered by the commission on its own motion.

Copies of all the orders hereinabove mentioned were mailed, on the respective dates when they were entered, to the plaintiff at his address as shown by the records of the State Industrial Accident Commission. There is no claim that the plaintiff did not in due course of mail receive such copies.

The plaintiff on January 22, 1938, filed with the commission a document which he designated a petition for rehearing, wherein after referring to the order of the commission dated January 14, 1938, he stated that the award was insufficient, in that he was suffering a permanent partial disability of 88 per cent, instead of the 20 per cent for which compensation was allowed. A rehearing of his claim was asked on the following ground:

"My right leg is totally disabled, and I am suffering a permanent and complete loss of the use of my right leg; or, in other words, because of the condition of my right leg resulting from my injury described in the above entitled proceedings I am entirely unable to work."

In an...