Lough v. State Indus. Acc. Commission

• Decision Date: 06 June 1922
• Citation: 207 P. 354,104 Or. 313
• Parties: LOUGH v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

207 P. 354

104 Or. 313

LOUGH v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

June 6, 1922

In banc.

Appeal from Circuit Court, Multnomah County; John McCourt, Judge.

Petition by Fred V. Lough to the State Industrial Accident Commission for compensation.From denial of his petition he appealed to the circuit court, which rendered judgment confirming the decision of the commission, and he appeals.Affirmed.

A. M. Crawford and W. C. Campbell, both of Portland for appellant.

James West, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and J A. Benjamin, Asst. Atty. Gen., on the brief), for respondent.

BURNETT C.J.

Claiming to have been injured on October 1, 1919, while at work for a shipbuilding corporation in Multnomah county, Or., the plaintiff presented his petition for compensation to the State Industrial Accident Commission on April 3, 1921.The Commission refused to allow him any compensation, and he appealed to the circuit court.A trial by jury was had in that court, resulting in the finding of a special verdict describing the injury and stating that, as a result thereof plaintiff became partially demented, so that he was mentally incapable of filing a claim prior to the time when it was filed.Basing its action upon the fact that the claim had not been filed before the Commission for more than a year after the happening of the accident by which he was injured, the circuit court confirmed the decision of the State Industrial Accident Commission rejecting it.The claimant appeals to this court.

The sole question presented for our consideration is the regularity of the order of the Commission rejecting the claim, and the affirmance of that order by the circuit court.The ruling complained of depends upon the construction of subdivision"d" of section 6632, Or. L., reading thus:

"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 injury occurred, nor in fatal cases unless such claim is filed within one year after the date upon which the fatal injury occurred."

The petitioner asserts that, while he was working on board a hull then in process of construction, a bolt fell upon his head from above, causing the injury, on October 1, 1919.Compensation is allowed to a workman, when injured under circumstances contemplated by the act, if he shall sustain "a personal injury by accident arising out of and in the course of his employment caused by violent or external means."Or.L. § 6626.As pointed out in Iwanicki v. State Industrial Accident Commission,205 P. 990, decided by this courtApril 18, 1922, the injury for which recovery can be had is one referable to a certain fixed point of time, and the law is not intended to, and does not cover what are termed "occupational diseases," the approach of which is gradual and insensible before they culminate in death or restoration to health.The words "date upon which the injury occurred" plainly indicate a certain point of time, and not an extended period Having in view the element of suddenness of the untoward event, we must say that, under our statute, the language refers to the date of the accident and the immediately consequent injury.

There are precedents, notably from Nebraska, Indiana, and Massachusetts, where the court construes the occurrence of the injury to mean, not its inception when the complainant was hurt, but the consequent progress and culmination of the injury received at the time of the accident.There are cases which hold under such statutes that the injured workman is entitled to wait until the culmination of his hurt, through its development and final progress to recovery, before making any claim to the Commission.In other words, such cases fix the occurrence of the injury at least at the climax and not at the beginning of the physical debility consequent upon the accident.They arise, however, under statutes differing largely from our own.Mainly they are instances where the employer is made directly liable to the injured employé under a schedule prescribed by the statute, and provision is made for giving notice as soon as practicable or as soon as the disability or insanity consequent upon the injury has been removed.

But there are no such provisions in our statute.Without equivocation it is said that the notice must be given within three months after the date upon which the injury occurred.Something occurred or came into existence on October 1, 1919.The injury happened at that time.True, it may not have developed instantly its full effect.But the injury which had no existence prior to that date came into existence at that time.In other words, it occurred at that date.

The question then is: What is the effect, under this statute, of failing to present a claim to the Industrial Accident Commission for compensation until more than the three months had elapsed from the date mentioned?The state, in pursuit of its public policy, by virtue of its police power, has formulated its bounty, to quote from the title of the act, "for the benefit, compensation and care of workmen."Whatever it be, whether a contract or a mere financial benefit created by the state, it had no existence prior to the enactment of the original workman's compensation act so called, approved on referendum, November 17, 1913.An injured workman has no cause of action against the Industrial Accident Commission any more than a suitor would have an action against a court which decided an issue adversely to his interests.It is true, the statute has provided an appeal from the decision of the Commission to the circuit court and thence to the Supreme Court.Whatever it may be, the statute makes a provision before unknown to our laws.It is as though the state had made an offer to injured employés upon certain terms, so that, even if we consider it as a contract, the party who would avail himself of the offer must accept it in the manner, at the time, and on the terms it is made.

The three months mentioned are not a limitation on the time for commencing an action, within the meaning of the general statute of limitations.Whether it be a contract or a mere offer, that period of three months within which the claim must be presented is one of the essential ingredients of the contract or of the offer of the gratuity, and he who would avail himself of its benefits must pursue the statute as it is written.The rule of construction applicable to such a statute is well stated in Van Steenwyck v. Washburn,59 Wis. 501, 17 N.W. 289, 48 Am. Rep. 532.In that casethe statute provided for an election by a widow between the statutory dower and the provision made for her by the will of her deceased husband.It was claimed for her that, because she was insane, she was incapable of making an election, and hence was excused from doing so, although the statute creating the right made no mention of any exception on that account.The court said:

"Where the widow is sane, is sui juris, capable of making contracts, competent to bind herself by a legal obligation, the way is plain.She can elect whether she will take the devise or other provision made for her in the will of her husband, or whether she will claim that interest in his estate which the law gives to her.But when we come to apply the statute to an insane widow, a non compos mentis, one who can exercise no intelligent judgment or choice, one who is not responsible for her acts, then it goes against our notions of right and justice.Still, the law is well settled that, in the construction of statutes, general words are to have a general operation, unless something is found in the statute itself which affords grounds for qualifying or restraining them.'No exceptions can be claimed in favor of particular persons or classes unless they are expressly mentioned.'Dixon, C.J., in Woodbury v. Shackleford,19 Wis. 60.The same principle was recognized and enforced in Lindsay v. Fay,28 Wis. 177, and it is doubtless in accord with the great weight of judicial opinion on this subject.As the Legislature has made no exception in the statute, the courts have no right to make one, because to do so would be legislation.Were we to hold that the statute does not include a widow of unsound mind, we should certainly be making an addition to it which the Legislature has not seen fit to enact.The ill effects of holding that the statute did include an insane widow were most ably presented in the argument of respondents' counsel.These evil consequences,

...