Kehoe v. State Indus. Acc. Commission

• Jurisdiction: Oregon
• Parties: Robert A. KEHOE, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Appellant.
• Citation: 214 Or. 629,332 P.2d 91
• Court: Oregon Supreme Court
• Decision Date: 26 November 1958

Page 91

332 P.2d 91

214 Or. 629

Robert A. KEHOE, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Appellant.

Supreme Court of Oregon.

Argued Oct. 15, 1958.

Decided Nov. 26, 1958.

Gerald C. Knapp, Asst. Atty. Gen., argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

Burl L. Green, Portland, argued the cause for respondent. On the brief were Green, Richardson, Green & Griswold, Portland.

Before PERRY, C. J., and WARNER, SLOAN and O'CONNELL, JJ.

PERRY, Chief Justice.

This is an appeal by the defendant State Industrial Accident Commission from a judgment of the circuit court remanding plaintiff's claim back to the Commission for the allowance of the proper benefits accorded this workman under the Act.

Several assignments of error are set forth in defendant's brief, but only two questions of law are involved:

First, did the trial court err in refusing to submit to the jury for its determination as a question of fact whether or not the defendant Commission abused its discretion in rejecting plaintiff's claim because it was not filed within three months after the occurrence of injury?

Second, did the plaintiff suffer a personal injury by accident caused by violent or external means? ORS 656.202. ^*

The facts appear as follows: The plaintiff, on March 26, 1955, as an employee of the Eggum Lumber Company undertook to operate a Hyster fork lift truck for the purpose of moving lumber. The truck had a defective steering mechanism that required excessive hand and arm pressure to steer the truck, and, because of the defective steering mechanism, the steering wheel would suddenly stop and kick back, jarring and jolting the plaintiff. Within a few hours after operation of the truck plaintiff suffered a myocardial infarction.

On March 26, 1956, the plaintiff filed his accident claim with the defendant, but no showing was made therein as to why the claim was not filed within three months after the occurrence of the purported accident.

On June 8, 1956, the defendant rejected the claim on the sole ground that plaintiff had failed to establish that he had sustained, in the course of his employment, a personal injury by accident caused by violent or external means.

On July 12, 1956, plaintiff filed his petition for a rehearing. At this rehearing the plaintiff was for the first time questioned as to why he had delayed filing his claim for more than three months.

On August 20, 1956, the defendant Commission entered its order rejecting the plaintiff's claim upon the grounds set forth in its original rejection order, and on the further ground that the defendant had not filed his claim within three months after injury, but only within the year.

From this order of rejection the plaintiff appealed to the Circuit Court of Multnomah County, setting forth in his complaint the defendant's grounds for rejection of his claim on the rehearing. At the conclusion of the introduction of the evidence by the parties, the trial court removed from the consideration of the jury the question of whether or not the defendant Commission had abused its discretion in rejecting plaintiff's claim because it was not filed within three months after the injury, and submitted solely the question of the merits of plaintiff's claim of accidental injury.

ORS 656.274 provides in part:

'No application shall be valid or claim thereunder enforceable in nonfatal cases unless such claim is filed within three months after the date upon which the accident occurred, but the commission may, in its discretion, upon a sufficient showing being made, permit the filing of a claim in a nonfatal case within one year of the time the accident occurred.'

This statute requires the Commission to accept all claims in meritorious cases filed within one year of the time of the accident, if reasonable cause is shown why a claim was not filed within the three months period. Tice v. State Industrial Accident Commission, 183 Or. 593, 195 P.2d 188.

The question of whether or not reasonable cause is shown for the late filing of a claim is a question of fact. Wooldridge v. Arens, 164 Or. 410, 98 P.2d 1, 102 P.2d 717.

Thus it appears there should be facts existing which call for the Commission's determination of the question of whether a reasonable cause exists to permit acceptance of the late filing.

In this case there can be no question but that the Commission actually permitted a late filing of the claim, for the claim itself shows the date of the accidental injury, the date of presentment to the Commission, and the Commission's rejection on the sole ground that plaintiff failed to produce sufficient evidence that the injury arose in the course of his employment by reason of an accident caused by violent or external means.

This presents a far different situation from that presented in Wooldridge v. Arens, 164 Or. 410, 98 P.2d 1, 102 P.2d 717, supra, wherein we held that the Commission had not exercised its discretion and accepted jurisdiction of the claimant's cause. Upon this issue, that case is authority only for the proposition that neither the mere filing of a claim nor the granting of a rehearing constitutes acceptance of jurisdiction by the Commission to determine the merits of a claim for compensation when the claim was rejected in the first instance because not proffered within the time provided by statute.

In the present case we find no rejection because of late filing until after the Commission had acted upon the claim and rejected it upon its merits.

In Wooldridge v. Arens, supra, 164 Or. at page 426, 102 P.2d at page 719, we said:

'* * * The statute, which authorizes the commission in its discretion to permit the filing of the claim after the three months' period, 'upon a sufficient showing being made', manifestly contemplates that the commission shall investigate the case before acting upon the application.'

This statement applies with full force to the cause considered. There is no evidence in this case but that the Commission performed its full duty and found sufficient reason to permit the late filing. In the absence of a showing to the contrary, there is a presumption that 'official duty has been regularly performed'. ORS 41.360.

It may be argued, since the Commission at the rehearing rejected the claim because of late filing, this is evidence that the Commission did not investigate the claim. Such ruling is not evidence of the prior investigation; it is at most only a showing that the Commission may have reconsidered its prior action.

Such reconsideration comes too late after due acceptance of the proffered claim. Yeager v. State Compensation Commissioner, 113 W.Va. 257, 167 S.E. 617; Calloway v. State Compensation Commissioner, 113 W.Va. 47, 166 S.E. 700.

The reasoning of these West Virginia cases, which held that a statute permitting a commission to waive the requirements of filing within a certain time, when once waived by the commission, was final, was recognized and approved by this court in Wooldridge v....