Gerber v. State Ind. Acc. Com.

• Decision Date: 23 April 1940
• Citation: 101 P.2d 416,164 Or. 353
• Parties: GERBER <I>v.</I> STATE INDUSTRIAL ACCIDENT COMMISSION
• Court: Oregon Supreme Court

164 Or. 353

101 P.2d 416

GERBER

v. STATE INDUSTRIAL ACCIDENT COMMISSION

Supreme Court of Oregon.

Argued February 13, 1940.

Reversed April 23, 1940.

Workmen's compensation — Rules of procedure

1. A workman sustaining an accidental injury in the course of his employment should not be denied relief because of failure to comply with some technical rule of procedure, but he has no just cause for complaint if he fails to do those things which the statute requires to be done to exercise the right of appeal.

Workmen's compensation — Appeal

2. In workmen's compensation case, appeal is a statutory privilege conferred on the claimant and the procedure prescribed must be strictly followed.

Workmen's compensation — Jurisdiction

3. The whole scheme of the Workmen's Compensation Law is purely statutory and in acquiring jurisdiction in pursuit of a statutory remedy the requirements of the enactment must be complied with strictly.

Workmen's compensation — Rehearing — Appeal

4. Where injured employee on April 16, 1937, within statutory period of 60 days after date of mailing by Industrial Accident Commission of copy of final order made on February 16, 1937, filed application for rehearing which was acted on by final order of the commission on December 4, 1937, it was incumbent on the employee to appeal within 30 days from the date of the mailing of the copy of such order and a second petition for rehearing did not extend time for appeal so that appeal perfected on May 4, 1938, was too late to confer jurisdiction on circuit court.

Workmen's compensation — Final award

5. Allowing payment of medical services is not an "award of compensation" within statute requiring an application for increased compensation for aggravation of disability to be filed within one year from date of first final award of compensation.

Workmen's compensation — Petition for rehearing

6. Where injured employee, within statutory period of 60 days from date of mailing by Industrial Accident Commission of copy of final order made on February 16, 1937, filed application for rehearing, which application was acted on by final order of the commission on December 4, 1937, closing claim, terminating compensation for temporary total disability and awarding compensation for permanent partial disability, the "first final award of compensation" was made on December 4, 1937, so that application for additional compensation filed on February 25, 1938, was within

statutory time, but where employee filed no petition for rehearing from the order denying such application, there could be no appeal therefrom.

RAND, C.J., and KELLY, J., dissenting.

                  Construction and effect of provisions of workmen's compensation
                act in relation to compensation of physicians or others rendering
                services to the injured employee, note, 72 A.L.R. 1012. See
                also, 28 R.C.L. 822 (8 Perm. Supp., 6246)
                

In Banc.

Appeal from Circuit Court, Curry County.

JAMES T. BRAND, Judge.

Proceeding under the Workmen's Compensation Act by D.W. Gerber, claimant, opposed by the State Industrial Accident Commission. From a judgment of the circuit court awarding additional compensation, the Industrial Accident Commission appeals.

REVERSED.

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

Collier H. Buffington, of Gold Beach, for respondent.

BELT, J.

This is a proceeding under the Workmen's Compensation Act wherein the claimant on appeal to the circuit court was awarded additional compensation to that made by the State Industrial Accident Commission. From the judgment of the circuit court, the commission appeals.

The sole question is one of procedure. The defendant commission contends that the circuit court had no jurisdiction of the cause in that the claimant had not perfected his appeal within the time provided by statute. Of course, if the appeal was not perfected within such time, the judgment must be reversed. The issue is clear cut.

1-3. Some confusion and uncertainty has arisen as to the proper procedure on appeal in such cases and it will be the purpose of this opinion, without undertaking to reconcile all that this court has said on the subject, to remove such doubt. No workman sustaining an accidental injury in the course of his employment should be denied relief by failure to comply with some technical rule of procedure. On the other hand, he has no just cause for complaint if he fails to do those things which the statute requires to be done to exercise the right of appeal. It is elementary that appeal is a statutory privilege conferred upon the claimant and the procedure prescribed must be strictly followed: White v. State Industrial Accident Commission (on petition for rehearing), 163 Or. 476, 98 P. (2d) 955. As stated by Mr. Justice BURNETT in Demitro v. State Industrial Accident Commission, 110 Or. 110, 223 P. 238:

"The whole scheme of the workman's compensation law is purely statutory and not according to the course of common law. It is elementary that in acquiring jurisdiction in pursuit of a statutory remedy, the requirements of the enactment must be complied with strictly." —

quoted with approval in Jackson v. State Industrial Accident Commission, 114 Or. 373, 235 P. 302.

Plaintiff sustained an accidental injury on January 27, 1937, and on February 12, 1937, a claim for compensation was filed with the State Industrial Accident Commission. On February 16, 1937, the commission, finding that the claimant "had not suffered any disability on account of his accidental injury," entered a final order closing the case, but allowed "payment for medical services."

On April 16, 1937, plaintiff filed a petition for rehearing. The commission, on April 23, 1937, entered an order reopening the claim for payment of compensation for temporary total disability until further order of the commission. On December 4, 1937, a final order was made closing the claim as of July 30, 1937, terminating compensation for temporary total disability, and awarding compensation for permanent partial disability on the basis of the loss of 20 per cent function of an arm.

Plaintiff did not appeal from this final order, but filed a second petition for rehearing on December 15, 1937. On December 22, 1937, the commission granted a rehearing and set the same for January 19, 1938, but no rehearing was had, the same being postponed from "time to time."

On January 28, 1938, an order was entered extending for a period of 30 days from January 15, 1938, the time to act on the petition for rehearing. On February 15, 1938, a further order was made extending the time to act on such petition an additional 30 days.

On February 25, 1938, claimant filed a "supplementary application" for rehearing, demanding compensation for aggravation of injuries.

On March 23, 1938, a rehearing was had and, on April 11, 1938, an order was made affirming the commission's order of December 4, 1937, and denying the application for compensation for aggravation of injuries.

On May 4, 1938, claimant filed his notice of appeal and complaint in the circuit court.

When the State Industrial Accident Commission was created in 1913 and an industrial accident fund was provided for injured workmen (Ch. 112, Laws of Oregon for 1913), no provision was made for any petition for rehearing. The claimant aggrieved by the decision of the commission appealed to the circuit court. It was not until 1925 that the claimant was required, before appealing to the circuit court, to file with the commission an application for rehearing (§ 7, Ch. 133, Laws of Oregon for 1925).

The legislative enactment of 1925 is codified as § 49-1842, Oregon Code 1930, and so far as is material herein provides as follows:

"* * * Any claimant aggrieved by any such order, decision or award must, before he appeals to the courts, file with the commission an application for rehearing, which application must be filed within sixty days from the day on which such copy of such order, decision or award was mailed claimant.

* * * * *

"If the commission, in its opinion, has previously fully considered all matters raised by such application it may deny the same and confirm its previous decision or award or if the evidence on file with the commission sustains applicant's contention it may allow the relief asked in such application; otherwise it shall order a rehearing to decide the issues raised. If a rehearing is granted the commission shall consider all facts, including those arising since making the order, decision or award involved, and shall enter such order as the facts and law shall warrant.

"An application for rehearing shall be deemed to have been denied by the commission unless it shall have been acted upon within thirty days from the date of filing; provided, however, that the commission may in its discretion, extend the time within which it may act upon such application, not exceeding thirty days." (Italics ours.)

It will be observed that the above section pertains to the time the application for rehearing must be filed and the time within which such application must be determined by the commission.

Subsection (c) of § 49-1836, Oregon Code...