Rohde v. State Indus. Acc. Commission

• Decision Date: 24 July 1923
• Citation: 217 P. 627,108 Or. 426
• Parties: ROHDE v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

217 P. 627

108 Or. 426

ROHDE v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

July 24, 1923

In banc.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Proceeding for compensation under the Workmen's Compensation Law by Herman F. Rohde, claimant. From a decision for claimant on his appeal to the circuit court from a decision of the State Industrial Accident Commission, the Commission appeals. Reversed.

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

F. S. Senn, of Portland (Senn & Recken and D. A Norton, all of Portland, on the brief), for respondent.

BURNETT J.

On April 10, 1919, the claimant, Herman F. Rohde, was in the employ of the Grant Smith-Porter Ship Company. Both he and his employer had elected to be subject to the provisions of the Workman's Compensation Law. On that date he was injured. On April 16, 1919, the employer filed with the State Industrial Accident Commission a report of the accident on the blank prescribed by the Commission, and in accordance with section 6634, Or. Laws. That report gave full particulars of the accident, how it happened, the effect upon the present claimant, and all details necessary to a clear understanding of the case. Conceiving that he had a remedy in admiralty because the accident occurred while he was working on a hull which had been launched into navigable waters Rohde commenced in the United States District Court for Oregon a suit against the employer for $50,000 damages. On May 3 of that year H. Beckwith, then one of the commissioners, called upon Rohde, according to the report which the former made to the Commission, and informed him of his right to make an application to the Commission for an allowance, and, according to the report of the commissioner the latter "endeavored to impress him that it was not the purpose of my visit to insist upon a claim being made out, but merely to inform him as to his rights." The claimant does not dispute this statement of the commissioner.

On July 11, 1919, the Grant Smith-Porter Ship Company, the employer, using the ordinary blank for workmen's claims for compensation, partly filled it out, giving the name of the employer, the location of its plant, the date of the accident, and the name of the injured workman, and added thereto the following writing:

"The within application is made on behalf of the injured workman, Herman F. Rohde, by his employer, Grant Smith-Porter Ship Company, because said injured workman refuses to make said application himself upon the assumption that the making of the application may affect his supposed right to prosecute a claim for damages in the admiralty court of the United States against his employer for the full damages sustained as a result of the injury. Grant Smith-Porter Ship Company is advised that such a claim for full damages in the admiralty courts of the United States cannot succeed, and if application for the compensation allowed by the laws of Oregon is not made by or on behalf of said injured workman on or before July 10, 1919, he will not be able to secure such compensation, and will be without any remedy or compensation. Therefore his employer, Grant Smith-Porter Ship Company, makes this application in the name of the injured workman and for him and on his behalf."

It was subscribed thus:

"Herman F. Rohde, by Grant Smith-Porter Ship Company, His Employer, by Eric V. Hauser, Vice President."

On receipt of this document the Commission sent to Rohde a printed postal card reading as follows:

"State Industrial Accident Commission of Oregon. Your claim for compensation has been received. Upon receipt of necessary reports you will be advised as to the action taken by the Commission. In writing about this claim always give the number, 65,455. Report promptly when you are able to return to work. Yours very truly, State Industrial Accident Commission, Salem, Oregon."

Responding to this on July 15, 1919, Lee Roy E. Keeley, attorney for Rohde in the admiralty suit, addressed to the Accident Commission a letter reading thus:

"On behalf of my client, Mr. Herman F. Rohde, and referring to your card addressed to Mr. Rohde, beg to advise you that Mr. Rohde has filed no claim with you for compensation, has made no application for compensation, and intends to make none. This relates to your file No. 65,455."

The only action taken by the Commission respecting the document received was the following memorandum in its files:

"Suspension--approved by the Commission July 23, '19--no claim presented."

On March 18, 1922, nearly three years afterwards, the Commission received from D. A. Norton, an attorney at law, a letter as follows:

"Mr. Herman Rohde, until his decease [meaning the death of Keeley] a client of Lee Roy E. Keeley, who has had considerable of negotiations with the Commission and brought action in the District Court of the United States against the Grant Smith-Porter Ship Company, and recently lost the decision in the Supreme Court of the United States, has asked me as his present attorney to ascertain the status of his claim before the State Industrial Accident Commission of Oregon. It appears from the evidence of Charles Hart, attorney, of the record of proceedings in the above court that application was made on behalf of Mr. Rohde by Mr. Hart for allowance of his claim by your body with the express purpose of saving Mr. Rohde's rights in case of adverse decision by the federal courts. This is confirmed by an acknowledgment of this application by the Commission. The Supreme Court decision itself affirms this right in Mr. Rohde. Mr. Bowdler, of your staff, here in Portland, implies that action can now be expected. May I inquire what can be done at this time in this matter to effect a final settlement?"

In response to this letter the Commission sent to Mr. Norton the following letter:

"We inclose herewith copy of the opinion of the Attorney General relative to the Rohde claim. You will see that the Attorney General holds that no valid claim was filed, and that this Commission does not have jurisdiction in the case."

Then followed an appeal by the claimant to the circuit court of Multnomah county. At the trial Rhode was called as a witness in his own behalf, and denied that he ever authorized Keeley to write a letter to the Commission instructing or notifying it that he did not want compensation or was not asking for compensation. The postal card already mentioned was put in evidence. On cross-examination Rohde was interrogated as follows:

"Q. Well, did you ever file any claim for compensation in this case? A. Not myself, only I understood that the company had.

"Q. Did you ever authorize anybody to file one for you? A. No; I did not.

"Q. I will ask you this question: Didn't Mr. Hart tell you that he was going to file a claim for you? A. Well, he didn't tell me there. I think it was up in the federal court, which I was unable to be there, that he told my sister or some one, and she came to me and told me that he had filed a claim which would stand good in case I had lost in the federal courts. * * * That is all I ever heard of the claim.

"Q. Did you authorize him to file that claim? A. Who?

"Q. Did you authorize him to file it? A. Mr. Hart?

"Q. Yes. A. No; I did not."

Section 6632, Or. L., of the Workman's Compensation Act, reads thus in part:

"Where a workman is entitled to compensation under this act, he shall file with the Commission his application for such compensation on blanks furnished by the Commission. The physician who attended him shall send to the Commission a certificate made out on blanks furnished by the Commission. * * *

"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. * * *"

Section 6634 requires the employer to report an accident to the Commission immediately on the occurrence thereof, stating certain particulars.

The commissioners are public officers, engaged in the administration of the industrial accident fund. Their duties are prescribed by law. They are not in any sense adverse parties against the claimant. Their functions are limited and defined by the terms of the statute, and, being thus ordered, the extent of their authority is well known to every one subject to the law. They cannot depart from the line of their duty. They can act only on the basis prescribed by the statute. The sole process by which an injured employee can move the Commission to make an allowance in his favor from the public funds is by his own application filed with the Commission. The express mandate of the statute is:

"He shall file with the Commission his application for such compensation on blanks furnished by the Commission."

It has been argued that the fact that the employer and the physician both made a report confers jurisdiction upon the Commission. This is plainly erroneous. Under a statute similar to our own the Supreme Court of Washington thus states the principle:

"In one section the employer, being required to make reports of accidents, is directed to state whether the accident 'arose out of or in course of the injured person's employment.' By no language whatever is this section made the basis of compensation or so connected with the compensatory provisions of the law as to give it other than statistical value for information to the department. Moreover, in the preceding clause it is stated that the report must be made whenever any accident or injury whatever occurs. This section, in short, makes no attempt to indicate what shall be paid."

...