Landauer v. State Ind. Acc. Comm.

• Decision Date: 02 October 1944
• Citation: 175 Or. 418,154 P.2d 189
• Parties: LANDAUER <I>v.</I> STATE INDUSTRIAL ACCIDENT COMMISSION
• Court: Oregon Supreme Court

175 Or. 418

154 P.2d 189

LANDAUERv.

STATE INDUSTRIAL ACCIDENT COMMISSION

Supreme Court of Oregon.

Submitted on briefs October 2, 1944.

Affirmed December 12, 1944.

Workmen's compensation

1. The filing of a compensation claim for nonfatal injuries more than three months after accident but within a year thereof does not entitle claimant to have claim heard upon merits unless Industrial Accident Commission in its discretion determines that claimant has made a sufficient showing to warrant such a hearing.

Workmen's compensation

2. Where claim for compensation for carcinoma of the breast was filed more than seven months after claimant was kicked by a turkey which claimant was dressing, Industrial Accident Commission did not abuse its discretion in rejecting the claim because it had not been filed within three months after accident.

Workmen's compensation

3. Contention of compensation claimant that carcinoma of the breast was the result of kick of a turkey required support of accredited medical experts.

Workmen's compensation

4. The denial of unverified petition for rehearing of claim for compensation for carcinoma of the breast allegedly caused by the kick of a turkey, in absence of corroboration by accredited medical experts, was not an abuse of discretion by Industrial Accident Commission.

Workmen's compensation

5. Industrial Accident Commission has judicial discretion to determine whether a showing in a given case is sufficient upon which to base an order permitting a claim for compensation for nonfatal injuries to be presented more than three months but within a year of accident.

Workmen's compensation

6. Act of Industrial Accident Commission arbitrarily or without sufficient reason in exercise of its discretion to authorize or refuse filing of a claim for compensation in a nonfatal case more than three months but less than a year after happening of accident may be corrected upon appeal.

Workmen's compensation

7. "Accident", within provision of Compensation Act requiring that claim be filed within three months of accident unless Industrial Accident Commission in its discretion permits a later

filing, means time of occurrence giving rise to injury rather than time when symptoms of injury become manifest.

                  See 28 R.C.L. 825
                  71 C.J., Workmen's Compensation, § 810
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Yamhill County.

ARLIE G. WALKER, Judge.

Proceeding under the Workmen's Compensation Law by Ann S. Landauer, claimant. From a judgment of the circuit court sustaining demurrer by State Industrial Accident Commission to plaintiff's complaint, dismissing said cause, and entering judgment against plaintiff in favor of defendant for its costs and disbursements, plaintiff appeals.

AFFIRMED.

Wm. P. Lord and Ben Anderson, both of Portland, for appellant.

George Neuner, Attorney General, and John K. Crowe and Herbert A. Cooke, Assistant Attorneys General, for respondent.

KELLY, J.

Upon this appeal two questions are presented. One is whether claimant's statement of claim as originally filed with defendant State Industrial Accident Commission, hereinafter designated the commission, and her petition for rehearing are sufficient to justify us in holding that the commission abused its discretion in rejecting said claim because it had not been filed within three months after the accident which is alleged to have caused claimant's injury, one year not having elapsed after the accident before the commission was called upon to decide whether to permit said claim to be presented.

The other question involves a construction of the statutory provisions prescribing when claims for compensation in nonfatal cases may be presented to defendant commission without invoking the exercise of the discretion of the commission. The claim in suit was not presented to defendant commission within three months after the accident which is alleged to have caused claimant's injury.

We will first discuss the question first mentioned, namely, whether an abuse of discretion has been shown on the part of the commission by reason of its rejection of plaintiff's claim after plaintiff's petition for rehearing was filed.

As the writer views the case of Wooldridge v. State Industrial Accident Commission, 164 Or. 410, 98 P. (2d) 1, 102 P. (2d) 717, the question there was whether in the exercise of its discretion, the commission had permitted Wooldridge to file his claim. On rehearing in this court it was held, over the dissent of the writer, that there had been no such permission to file the Wooldridge claim as to interfere with the right of the commission to refuse to consider the claim on its merits because it had not been filed within three months after the accident.

1. In the case at bar, we are bound by the doctrine announced in the Wooldridge case on rehearing. That doctrine very definitely dissipates the thought that by filing a claim after three months have elapsed from the date of accident, a claimant thereby becomes entitled to have his claim heard upon the merits. It is still necessary that the commission be accorded an opportunity in the exercise of its discretion to determine whether claimant has made a sufficient showing to be entitled to a hearing upon the merits.

For the purpose of this case, it may be stated that the statute provides that no application for compensation under the Workmen's Compensation Law 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, unless the commission, upon a sufficient showing being made, in its discretion permits the filing of such claim within one year of the time the accident occurred. Vol. 7, O.C.L.A. Section 102-1771, Subdiv. (e), pp. 687, 688.

Upon appeal to the circuit court from the order of the commission denying claimant's petition for rehearing, the instant case was submitted and determined upon the commission's demurrer to plaintiff's complaint. The circuit court in its final order sustained said demurrer, dismissed the cause and entered judgment against plaintiff in favor of defendant for defendant's costs and disbursements.

We learn from plaintiff's complaint, which is our only source of information thereupon, that plaintiff sustained an injury by violent, external and accidental means during the month of December, 1942, and thereafter, on the 4th day of August, 1943, which was more than seven months after the accident, plaintiff filed with defendant a claim setting forth that plaintiff had been injured by being kicked in the breast by a turkey while plaintiff was employed by a contributing employer, and while she was engaged in dressing the turkey.

2. The record fails to disclose any additional showing, after said claim had been filed and before its original rejection by the commission, in explanation of plaintiff's failure to file her claim within three months after the date upon which the accident occurred. Manifestly, no abuse of discretion appears with respect to the first order of the commission rejecting said claim, because it had not been filed within three months after the accident, unless the term "three months after the accident" may be construed to mean three months after a compensable injury due to the accident first manifests itself.

As an exhibit to plaintiff's complaint, a copy of plaintiff's petition to the commission for a rehearing is attached. This document was not signed by plaintiff in person, but only her name by her attorney. It was not verified by any oath or affirmation.

Its pertinent statement is as follows:

"Claimant was employed by Northwest Poultry & Dairy Products Company in Yamhill County and engaged in dressing turkeys; that during the month of December, 1942, the exact date whereof claimant is not able to specifically state, but the incident is subject to corroboration, claimant was dressing a turkey which was assumedly dead, but said turkey kicked claimant on the right breast causing claimant considerable pain and suffering, but was not of a disabling nature; that a lump formed in claimant's right breast at the place where the claimant was kicked, but still said injury was not disabling nor showed any signs or manifestations of being an injury of any consequence, and claimant continued her employment of dressing turkeys, picking beans and peas and working in the fields until about the 4th of August, when said injury began to manifest itself by way of pain at the situs where claimant had been kicked; that thereupon claimant consulted with a physician and surgeon and it was ascertained that claimant had sustained an injury to the breast gradually resulting in carcinoma, whereupon and on the 4th day of August, 1943, or thereabouts, claimant filed with the Commission, a claim for compensation * * * * *."

3, 4. It is obvious that only accredited medical experts could adequately support the contention that the kick of a moribund turkey in December produced cancer of the breast during the following August. Jaume v. Maison Blanche Co., (La. App.) 193 So. 905; Dushane v. Benedict, 120 U.S. 630, 30 L.Ed. 810, 7 S.Ct. Rep. 696. In the absence of some such corroboration of the unverified petition of claimant, it cannot be said that the commission abused its discretion in denying such petition.

We are not unaware of the embarrassment attendant upon an attempt to establish, even by the most learned members of the medical profession, what causes cancer. This embarrassment is vividly reflected in the opinion of Mr. Justice DeHaven, speaking for the Supreme Court of Tennessee in the case of McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W. (2d) 408, which was a suit originally instituted by Mrs. Nell Webb and revived after her death by Mrs. Cora McBrayer as the administratrix of Mrs. Webb's estate. After quoting from the testimony of the...