Iwanicki v. State Indus. Acc. Commission of Oregon

• Decision Date: 18 April 1922
• Citation: 104 Or. 650,205 P. 990
• Parties: IWANICKI v. STATE INDUSTRIAL ACC. COMMISSION OF OREGON.
• Court: Oregon Supreme Court

205 P. 990

104 Or. 650

IWANICKI v. STATE INDUSTRIAL ACC. COMMISSION OF OREGON.

Supreme Court of Oregon

April 18, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Proceeding under the Workmen's Compensation Act by Julian Iwanicki for compensation for injuries.Upon appeal from an alleged decision of the Commission refusing to reopen the case, the circuit court remanded the cause, with directions to fix compensation in accordance with the jury's findings, and the Industrial Accident Commission appeals.Reversed.

James West, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., on the brief), for appellant.

B. A Green and Walter McGuirk, both of Portland (B. A. Green and McGuirk & Schneider, all of Portland, on the brief), for respondent.

BURNETT C.J.

On December 21, 1920, the plaintiff filed with the Industrial Accident Commission a workman's claim for compensation by which it appears that he was in the employ of the Pacific Car & Foundry Company, engaged in building cars, and that he was occupied in upholstering for seven weeks.He states that the accident happened while he was working in the erecting shop that he put nails in his mouth, and that on account thereof a severe case of lead poisoning ensued, resulting in obstruction of the bowels.The Commission at first disallowed his claim entirely, but afterwards reconsidered its decision, made an adjustment of the claim which required correction in some detail of calculation, and finally, on March 18, 1921, made an allowance setting out the total to which he was entitled, deducting payments already made, and stating that the complainant "is entitled to receive the further payment of $25.16 in full settlement for any and all claims arising out of such injury as above listed on the records of the State Industrial Accident Commission.The plaintiff's attorney on April 2 addressed a letter to the Commission advising it that the claimant was then suffering from lead poisoning neuritis, and was unable to work.He closed his letter with this language:

"I do not want to file an additional notice of appeal and I believe the matter can be adjusted amicably if we are permitted to appear before your commission some time in the near future."

On April 6, 1921, the Commission wrote the attorney acknowledging receipt of his letter of April 2, and saying:

"As there has been no evidence submitted which would justify the Commission in reopening these caseswe will be unable to comply with your request."

Afterwards on April 20, the attorney filed an affidavit of the claimant reciting the history of the proceedings, admitting compensation on account of his disability up to and including January 31, 1921; also quoting the letter written by the attorney, already mentioned, and asserting that the claimant is still suffering from the disability.With it also was submitted a certificate of his physician dated April 16, 1921, to the effect that the petitioner had complained to him about a month previous of pains in his legs and shoulders, had some colic, and occasionally a sort of mental lapse; that the physician had examined his blood; that his nutrition was good; and that almost all of his symptoms were subjective except that the plaintiff is a little ataxic, and seems to be mentally irritated.Thereafter, on May 16, 1921, the Commission, acknowledging receipt of the attorney's letter, stated:

"Final action was taken by the Commission on these casesMarch 17, which was covered by our findings dated March 18.The claims will not be reopened."

On July 9, 1921, the Commission received through the attorney the following affidavit:

"I, Ralph S. Fisher, being first duly sworn, do depose and say that I have been in attendance as physician and surgeon upon Julian Iwanicki since about the middle of the month of November, 1920.I found him to be suffering from acute lead poisoning, and treatments were given accordingly during the months of November, December, January, and February.These treatments were given at intervals varying from two to five days.During the first part of February, 1921, Julian Iwanicki seemed to be normal.Later on, and about the 1st of March, he returned to me for treatments, still suffering from acute lead poisoning.Although his condition at this time was not as serious as formerly, he complained of pains in his legs and shoulders and considerable amount of colic, and occasionally a sort of mental lapse, whether from dizziness or not I cannot say.Upon April 14 I had his blood examined, and attach herewith the findings, which were negative.I also found the urine to be negative.He claimed to be unable to work.His nutrition was good, and most all symptoms were subjective.At all times subsequent to about the 1st of March he has reported to me and received treatments at intervals, as stated above, up until about the 20th day of June, 1921.His condition has been steadily improving and to me he seems to be fully recovered and to be able to return to work, although this cannot be definitely determined, owing to the nature of the illness."

On July 11, the Commission wrote the attorney, acknowledging receipt of the letter accompanying that document, and stating that:

"We beg to advise you that the claims in question have been closed."

The plaintiff then appealed to the circuit court of Multnomah county on August 25, 1921.On September 28, 1921, the Commission filed a motion to dismiss the appeal, as follows:

"Comes now the defendant in the above-entitled appeal and moves that said appeal be dismissed for the reason that the defendant has not since March 18, 1921, made any decision relative to the claim of Julian Iwanicki for compensation under chapter 1 of title 37 of Oregon Laws, and that the time in which plaintiff is entitled to appeal has long since expired."

Appended is an affidavit giving the history of the proceeding, setting out substantially all of the correspondence on the subject.This had already appeared in the abstract, so that, taken all together, there is reiteration of documents almost equal to that in the nursery literature of "The House that Jack Built."

The Commission stood on its motion to dismiss, which was overruled by the circuit court, and refused to proceed further.The plaintiff called a jury, and presented his evidence.The jury returned the following special verdict:

"We, the jurors, duly impaneled in the above cause, make answer to the following questions as here below given:

"(1) Was there an aggravation of plaintiff's injury subsequent to the award of temporary total disability?A.Yes.

"(2) If so, was there a recurrence of the injury or aggravation discovered after the award of temporary total disability?A.Yes.

"(3) Did plaintiff make application in this case for an award on account of the aggravation?A.Yes.

"(4) Does plaintiff now suffer permanent partial disability and loss of function of the left arm which condition was not present prior to the application in this case?A.Yes.

"(5) If so, what per cent. of permanent partial disability and loss of function of the left arm does plaintiff now suffer?A. 95 per cent.

"(6) Has plaintiff at any time, on account of the accident, suffered total disability since this application was made?A.No.

"(7) If so, for what period of time?A. _____.

"(8) Is he now totally disabled?A.No.

"(9) Does plaintiff now suffer permanent total disability?A.No."

Upon this verdict the circuit court remanded the cause to the Commission with orders forthwith to fix compensation for the plaintiff in accordance with the findings of the jury and award him costs and disbursements.From this result the Commission appealed, saying in its assignment of errors that:

"The court erred in denying defendant's motion to dismiss plaintiff's appeal.

"The judgment is not supported by the verdict.

"The court erred in entering a judgment upon a defective and uncertain verdict which does not sustain such judgment."

As to the motion to dismiss the appeal, the record discloses that, besides the decision of March 18, making an allowance "in full settlement for any and all claims arising out of such injury," there were: (1) A letter of April 6 written by the Commission to the effect that it would be unable to comply with the attorney's request to reopen the cases; (2) the letter of May 16, 1921, stating that "final action was taken by the Commission on these casesMarch 17, which was covered by our findings dated March 18.The claims will not be reopened"; and, lastly, (3) the letter of July 11, in which the Commission writes: "We beg to advise you that the claims in question have been closed."

Section 6637, Or. L., as amended by the act of February 26, 1921(Laws 1921, c. 311), provides that:

"The Commission shall have full power and authority to hear and determine all questions within its jurisdiction but any beneficiary not satisfied with the decision or findings of said Commission may, within sixty days after notice of the final action of such Commission, appeal to the circuit court of the state of Oregon for the county in which such claimant resides."

If each of these letters of the Commission which have been noted was a decision, it became final beyond the right of appeal at the expiration of 60 days from the date of the letter.This would dispose of all of them except the one of July 11, 1921, which is described in the notice of appeal as being the decision from which the appeal was taken.

Enneberg v. State Industrial Accident Commission,88 Or. 436, 167 P. 310, 171 P. 765, was a case involving a claim which had been determined by the Industrial Accident Commission.There, as here, the claimant seems to have been dissatisfied with the result, and, in response to the...