Gregory v. State Indus. Acc. Commission
| Citation | 205 Or. 643,288 P.2d 1069 |
| Parties | Donald W. GREGORY, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION, Appellant. |
| Decision Date | 26 October 1955 |
| Court | Supreme Court of Oregon |
Roy K. Terry, Asst. Atty. Gen., argued the cause for appellant. With him on the brief, were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen., both of Salem.
K. C. Tanner, Portland, argued the cause for respondent. With him on the brief was Richard R. Carney, Portland.
Before WARNER, C. J., and LUSK, BRAND, and LATOURETTE, JJ.
On December 27, 1950, plaintiff, Donald W. Gregory, an employee under the Workman's Compensation Act, filed a complaint in the circuit court. This complaint constituted an appeal from the order of the State Industrial Accident Commission of October 18, 1950, suspending plaintiff's total permanent disability payments made pursuant to the commission's order of December 17, 1947.
Defendant appeals to this court from a judgment on the pleadings in favor of plaintiff. The pleadings before us and on which the judgment was entered are the complaint and the fourth answer filed, denominated 'Third Amended Answer', but which was erroneously designated as the 'Fourth Amended Answer' in the judgment.
On or about March 1, 1945, while employed by McCulloch & Sons, plaintiff sustained personal injuries arising out of and during the course of his employment by violent and external means. The injuries consisted of a broken back and broken arms, involving a fracture of the third and fourth dorsal vertebrae, with marked compression, a deformity of a third thoracic vertebral body, a comminuted fracture of the lower end of the radius and ulna in the wrist joint in the left arm, and a fracture of the lower end of the radius in the right arm. Plaintiff's brain and central nervous system were also injured.
The complaint alleges a number of awards to the plaintiff by the commission which resulted in an order dated December 17, 1947, granting to plaintiff compensation for permanent total disability from said date; and further, that thereafter and on August 22, 1950, the commission on its own motion ordered a hearing to be held on September 7, 1950, to determine whether the permanent total disability award granted plaintiff should be modified to a permanent partial disability award; and that pursuant to the request of the commission, plaintiff submitted to a physical examination and said physical examination disclosed no physical or anatomical change and disclosed affirmatively the same physical and anatomical condition which existed at the time of the aforesaid adjudication of December 17, 1947.
It is further alleged that the commission, on October 18, 1950, entered an order suspending payment of total permanent disability as of October 1, 1950, until the condition of said plaintiff supports a reinstatement of permanent total disability. It is further alleged that on or about November 9, 1950, plaintiff filed a petition for rehearing which petition was denied on December 9, 1950, and that the action of the commission in the aforementioned respect was unjust, erroneous and illegal.
The Commission's third amended answer denies each and every allegation contained in the complaint, excepting those allegations specifically admitted by its further separate answer and defense. The defense, inter alia, is as follows:
'III. That after the making of said order of December 17, 1947 plaintiff's physical condition started to slowly improve through the benefits of rest and improved mental condition and the healing processes of nature, and by the month of May 1948 he had completely recovered from the disabilities arising from his broken arms and had very largely, but not completely, recovered from the disabilities incident to the injuries to his back and head as aforesaid, and that at said time he was able to resume his former occupation as a truck driver and was hired by the Cascade Construction Company of Portland, Oregon as a truck driver for one of its gravel trucks, and that said occupation was a gainful occupation; that plaintiff worked regularly at his occupation of a truck driver from the month of May 1948 through a part of the month of November 1950; that thereafter and in the month of November 1950 the plaintiff terminated his employment with the Cascade Construction Company and entered the employment of the Convoy Company of Portland as a truck driver and was engaged in driving...
To continue reading
Request your trial
-
Ramstead v. Morgan
...the appointment of plaintiff as guardian were absolutely privileged. Moore v. Sater, supra. Cf., Gregory v. State Industrial Accident Commission, 1955, 205 Or. 643, 288 P.2d 1069, where the privilege was not recognized because the proceedings were ministerial rather than judicial or The pri......