Wooldridge v. Arens

• Decision Date: 21 May 1940
• Citation: 102 P.2d 717,164 Or. 410
• Parties: WOOLDRIDGE v. ARENS et al.
• Court: Oregon Supreme Court

102 P.2d 717

164 Or. 410

WOOLDRIDGE v. ARENS et al.

Supreme Court of Oregon

May 21, 1940

In Banc.

Appeal from Circuit Court, Lincoln County; Carl E. Wimberly, Judge.

On rehearing.

Judgment of the circuit court reversed and cause remanded, with directions.

For former opinion, see 98 P.2d 1.

KELLY J., dissenting.

H. Lawrence Lister, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and Oliver Crowther and C. S. Emmons Asst. Atty. Gen., on the brief), for appellants.

Mark V Weatherford, of Albany (G. B. McCluskey, of Toledo, on the brief), for respondent.

LUSK, Justice.

The defendant State Industrial Accident Commission made an order denying to the plaintiff the benefits of the Workmen's Compensation Law (Code 1930, § 49-1801 et seq.) and refusing to file his claim for the reason that it had not been received within three months after the date upon which the injury occurred. The plaintiff applied for a rehearing, which was granted, and the commission, after rehearing, entered an order adhering to its former decision, and from that order the plaintiff appealed to the circuit court. Substantially he alleges in his complaint that he was injured in the course of his employment while both he and his employer were subject to the Workmen's Compensation Law; that for certain reasons stated he failed to file his claim within the three months period; that his claim was filed within one year after the injury occurred and was accepted by the commission, which assumed full jurisdiction over it. He charges that the commission is guilty of an abuse of discretion in refusing to grant him compensation for his injury, and prays for a judgment that he is entitled to receive compensation and directing the commission to allow him compensation as provided by law for such injury.

Based upon the jury's verdict, the circuit court entered a judgment setting aside the order of the commission, finding, among other things, that the commission had permitted the claim to be filed, and directing the commission to allow the plaintiff compensation as by law provided for his injury.

The court is now of the opinion, after rehearing, that the plaintiff has produced no evidence in support of the essential allegations of his complaint and that the circuit court should have granted the defendants' motion for a directed verdict. Formerly, the statute provided that a claim based on an injury not resulting in death must be filed with the commission within three months after the date of the injury. Then, no matter how valid the excuse or what the circumstances of hardship, such, for example, as in the case of Lough v. State Industrial Accident Commission, 104 Or. 313, 207 P. 354, an injured workman was without recourse if the claim was not filed within the statutory period. To ameliorate the harshness of the law, the legislature in 1925 provided: "*** The commission, upon a sufficient showing being made, may, in its discretion, permit the filing of a claim in a nonfatal case after such three months' period, but within one year of the time the injury occurred." Section 49-1836 (d), Oregon Code 1930.

The case of the plaintiff, as made by his complaint, is that the commission, in the exercise of the discretion thus conferred upon it, permitted the filing of his claim after the expiration of the three months' period, and thereby assumed jurisdiction over it, for which reason the commission is bound to pass upon the merits of his claim. A summary of the evidence appears in the former opinion. We think that evidence fails to show that the commission took any action whatsoever with respect to the plaintiff's claim until it made its order dated April 5, 1938, by which it refused to accept the claim because it had not been received within three months from the date of the accident. The statute provides: "A majority of the commissioners shall constitute a quorum to transact business, and the act or decision of any two of the commissioners shall be deemed the act or decision of the commission." Section 49-1805, Oregon Code 1930.

There is not a syllable of evidence in the record that any member of the commission, except one, had ever heard of the plaintiff's claim until the order of April 5, 1938. It is doubtful, indeed, whether there is any competent evidence that any commissioner had heard of the claim before that date. The plaintiff testified that he discussed his claim with an unidentified person who, he was informed by an attendant in the office of the commission, was one of the commissioners. That would be hearsay as to the identity of the man to whom the plaintiff talked. But, assuming that a member of the commission discussed the matter with him and directed him to a physician for a physical examination, and received the claim and turned it over to a clerk of the commission and instructed the clerk to place upon it a file number and the number of the employer's account, together with a stamp showing the date of its receipt, none of these facts, taken separately, nor all of them together, would contitute action upon the claim by the commission nor justify the drawing of an inference that the commission had acted. 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. Otherwise, it could not exercise any discretion whatever. The mere receipt of the claim at the office of the commission and the performance of such mechanical acts as placing numbers and file marks upon it, surely do not constitute the exercise by the commission of such discretion. In the whole record of this case the only evidence of any action taken by the commission with respect to the claim is the order of April 5, 1938, refusing to accept it because it had not been received within the statutory period and its subsequent order of June 29, 1938, reaffirming its previous order after a rehearing.

It is no doubt true that granting the petition for rehearing and the rehearing itself were the acts of the commission. But the rehearing which was granted was on the question of whether or not the claim should be considered at all, not on the merits of the claim. The commission's order, dated June 29, 1938, which, after rehearing, affirmed the previous order of April 5, 1938, recites that the plaintiff "was denied the privilege of filing a claim for compensation *** on the grounds that said application for compensation was not received within three months from the date of the alleged injury". The rehearing was upon the matter determined by the order of April 5, 1938. The application refers to that order, and alleges that because of the facts in the application stated, which include the plaintiff's excuse for not filing the claim within the statutory time, "there was and is an abuse of discretion, lodged by law with the State Industrial Accident Commission, to not consider and allow the claim of this employee filed herein." The commission did not take jurisdiction of the claim by granting a rehearing on the question of whether or not it had taken jurisdiction of the claim, assuming that that was the question presented by the application for rehearing.

In point of fact, that was not the ground on which the application for rehearing was based, but the basis of the application was the refusal of the commission to permit the claim to be filed. That presents another objection to the validity of the judgment, to which we shall presently advert.

The cases of Yeager v. State Compensation Commissioner, 113 W.Va. 257, 167 S.E. 617, and Calloway v. State Compensation Commissioner, 113 W.Va. 47, 166 S.E. 700, cited by the plaintiff, are clearly distinguishable. In West Virginia there is one compensation commissioner. In the Calloway case the court found, from the admitted facts, that that official had exercised his discretion to receive the application and pass upon it after investigation. He had sent a blank application for compensation to the claimant's attorney, investigated the merits of the case, and subsequently advised the claimant that his claim was refused on the ground that it was not proven that his disability was due to an injury. After this, the commissioner decided, and so advised the claimant, that his claim had not been filed within the statutory time. In the Yeager case, in addition to other facts showing that the sole commissioner had assumed jurisdiction of the claim, an inspector was sent to take evidence in regard to the alleged injury. This evidence was transmitted to the commissioner, and an application blank was afterwards forwarded to the claimant and received by the commissioner, who thereafter made an order which showed on its face that the commissioner had considered the merits of the claim. The commission had, as the court said, "gone into but one question, the compensability of the claim." In both cases the court rightly held that the commissioner had exercised his discretion given by statute to permit the claims to be filed; but the distinction between those cases and the one here under review is, first, that in them the action taken was the action of the sole official with authority to act, and, second, that there was affirmative evidence showing that he had accepted the claims and had actually entered upon a consideration of their merits before attempting to reject them on the ground of a late filing.

A further fatal defect in the plaintiff's case appears when the application for rehearing is compared with the complaint in the light of the following provisions of the Workmen's Compensation Law. The statute requires a claimant, aggrieved by an order of...