Sahnow v. FIREMAN'S FUND INSURANCE COMPANY

491 P.2d 997, 260 Or. 564, 1971 Ore. LEXIS 341

• Court: Oregon Supreme Court
• Decided: December 15, 1971
• Status: Published

Opinions

HOWELL, J.

This is a workmen’s compensation case involving the issue of the compensability of a claim for death benefits from a heart attack.

Plaintiff’s decedent had been employed by Beaverton Auto Parts, and on August 14, 1967, he died of a rupture of the left ventricle of the heart. Plaintiff’s claim for compensation was denied by defendant Fireman’s Fund Insurance Company, the employer’s insurance company. The Workmen’s Compensation Board referred plaintiff’s claim to a hearing officer for a determination. At the hearing plaintiff rested her casé after offering in evidence a certified copy of the death certificate and a report written by Dr. Rogers, a heart specialist who had been the deceased’s treating physician. A pathologist and a cardiologist called by defendants testified to the effect that the deceased’s work activity had not been a materially contributing factor in his death.

The hearing officer rejected plaintiff’s claim for compensation and plaintiff requested a review by the Workmen’s Compensation Board. Plaintiff moved the Board to remand the case to the hearing officer for the taking of additional testimony. The motion was supported by an affidavit of one of plaintiff’s attorneys challenging the conclusion of defendants’ pathologist and cardiologist on the ground that the conclusion was based on the erroneous assumption that Dr. Rogers had performed serum enzyme studies and electrocardiograms, and that the results thereof were normal. The affidavit further alleged that Dr. Rogers, if allowed to testify, would state that enzyme studies had not been made, and that electrocardiograms performed on the day of the accident differed from prior electrocardiograms.

The Workmen’s Compensation Board directed the hearing officer to ascertain whether the absence of enzyme studies would alter the opinions of the pathologist and cardiologist. The doctors advised the hearing officer that the absence of such studies would not alter their opinion. The Board then affirmed the decision of the hearing officer and rejected plaintiff’s claim.

Plaintiff appealed to the circuit court. Plaintiff produced Dr. Rogers and requested the court to hear his testimony. Defendants objected on the ground that Dr. Bogers’ testimony had been obtainable at the time of the hearing.

① The court decided to hear Dr. Bogers’ testimony on the basis that since he could remand the case to have the testimony taken by the hearing officer, he would save time by listening to Dr. Bogers himself.

After hearing Dr. Bogers’ testimony, and based on the record as supplemented by that testimony, the circuit court affirmed the decision of the hearing officer, as affirmed by the Workmen’s Compensation Board, and found that plaintiff was not entitled to compensation.

Plaintiff then appealed to the Court of Appeals. That court held, 3 Or App 164, 470 P2d 378 (1970), that because Dr. Bogers’ testimony had been available at the time of the hearing before the hearing officer, the circuit court erred in permitting the doctor to testify instead of remanding the case to the hearing officer, as provided for by OBS 656.298(6). The Court of Appeals concluded that because Dr. Bogers’ testimony had been improperly admitted it could not be considered on appeal. The ease was remanded to the circuit court with instructions to remand it to the hearing officer to take Dr. Bogers’ testimony and any other evidence needed to explore the question of medical causation.

We agree with the Court of Appeals that the trial judge erred in hearing Dr. Rogers’ testimony, because while the trial judge may hear additional evidence concerning disability, the additional evidence is restricted to evidence “not obtainable at the time of the hearing.” ORS 656.298(6).

We now turn to the question of whether this court should decide the case on its merits, or whether we should affirm the action of the Court of Appeals in remanding the case back to the hearing officers. A decision on the merits would depend on whether this court has the duty to review de novo workmen’s compensation cases coming to us from the Court of Appeals. The members of this court are in disagreement concerning our scope of review in workmen’s compensation cases; however, a majority of the court is now of the opinion that our review should not be de novo but should be limited to errors of law. In arriving at this conclusion, the majority now accepts the reasoning of Denecke, J., in his dissenting opinion in Surratt v. Gunderson Bros., 259 Or 65, 485 P2d 410 (1971). There, Justice Denecke pointed out that appeals from the judgment of the circuit court under ORS 656.801 in workmen’s compensation cases are now to the Court of Appeals who review the record de novo. Although no statute specifically delineates the scope of our review of workmen’s compensation cases coming from the Court of Appeals, subsection (5) of ORS 2.520 provides:

“After the Supreme Court allows a petition for review, such further proceedings shall be had as the Supreme Court by rule may provide. However, review by the Supreme Court is limited to those errors asserted in the petition for rehearing in the Court of Appeals, unless the Supreme Court shall take notice of plain error apparent on the face of the record.”

Justice Denecke concluded, and a majority now agrees, that the scope of review in this court should not he de novo, particularly for the reason that de novo trials on the record are allowed before the Board, the circuit court, and the Court of Appeals.

We believe that the Court of Appeals had the discretion to decide the case on the merits based on the record made before the hearing officer, which would exclude the testimony of Dr. Rogers taken in the circuit court. Beagle v. Rudie Wilhelm Warehouse Company, 2 Or App 533, 463 P2d 875, 470 P2d 386 (1970). The Court of Appeals also had the discretion to remand the case to the hearing officer. Basically, a claimant’s case is established before the hearing officer where the record is made. Under ORS 656.298(6), if the case is appealed to the circuit court the trial judge is given wide latitude, with the exception that any additional evidence which he may hear is restricted to evidence that was not obtainable at the time of the hearing before the hearing officer. The trial judge “may remand the case to the hearing officer for further evidence taking, correction or other necessary action.” He may “affirm, reverse, modify or supplement the order appealed from, and make such disposition of the case as [he] determines to be appropriate.”

Under ORS 656.301 the Court of Appeals is given the same scope of review as the circuit court.

The Court of Appeals could have decided the case on its merits based on the record made before the hearing officer, or it could have followed the procedure taken and remand the case to the hearing officer for further testimony. We do not find any basis for holding that the Court of Appeals abused its discretion in remanding the ease to the hearing officer.

Affirmed.

ORS 656.298(6) states: “The circuit court review shall be by a judge, without a jury, on the entire record iorwarded by the board. The judge may remand the case to the hearing officer for further evidence taking, correction or other necessary action. However, the judge may hear additional evidence concerning disability that was not obtainable at the time of the hearing. The judge may affirm, reverse, modify or supplement the order appealed from, and make such disposition of the case as the judge determines to be appropriate.”