Wooldridge v. Arens

102 P.2d 717, 98 P.2d 1, 164 Or. 410, 1940 Ore. LEXIS 100

Opinions

KELLY, J.

According to plaintiff’s application for compensation, petition for rehearing and complaint, on the 25th day of June, 1937, plaintiff, being then employed by B. A. Christianson, was engaged in logging, hauling timber, bucking timber and similar work in logging operations in Lincoln county, Oregon. Plaintiff’s showing is to the effect that at that time both his employer Mr. Christianson and he, plaintiff, had complied with all of the laws .pertaining to, and were operating under the provisions of the Workmen’s Compensation Act. Plaintiff claims that, while thus engaged on said 25th day of June, 1937, a limb from a,tree, which plaintiff was in the act of felling, broke loose, fell and accidently struck plaintiff on the left side of his back.

It appears from the record that on March 31, 1938, plaintiff’s application for compensation was received by defendant commission, which application was given Claim No. 627,788; the number of Mr. Christianson’s account with the commission was endorsed thereupon; plaintiff was thereupon directed to submit to a physical examination by an examining physician of said commission ; and defendant submitted to a physical examination in obedience to said direction.

On April 5, 1938, defendant commission entered an order, which, omitting the title, claim number, date and official signature, is as follows:

“The foregoing claim coming on for consideration before the State Industrial Accident Commission of Oregon, the commission finds:

It is hereby ordered that E. B. Wooldridge be and is hereby denied the benefits of the Workmen’s Compensation Act, for the reason that the commission is refusing to accept claim for injury of June 25, 1937, on account of same not having been received within three months from the date of the accident.”

On May 28,1938, plaintiff filed with defendant commission an application and petition for rehearing of his claim and application for compensation.

Thereafter, a rehearing was granted by said commission ; and on June 16,1938, a rehearing was held at which time plaintiff appeared and offered evidence.

In June 29, 1938, an order was entered affirming said order of April 5, 1938.

The sufficiency of plaintiff’s petition for rehearing and complaint is challenged by defendant commission.

The purported insufficiency of plaintiff’s application for rehearing consists in its failure to assign any other alleged irregularity or error than the denial to plaintiff by the commission of the benefits of the Workmen’s Compensation Act for the reason that plaintiff’s application for compensation was not received within three months from the date of the accident.

A similar objection is made to plaintiff’s complaint.

Tbe statute provides that upon an appeal from a final order upon an application for rehearing, plaintiff may raise only such issues of law or facts as were properly included in his application for rehearing. Section 49-1843, Oregon Code 1930, as amended by chapter 178, Oregon Laws 1935, p. 263.

It is urged that the complaint should have stated plaintiff’s marital status, dependents, wages, whether he worked six or seven days a week, in order to afford a basis for findings thereon by the trial court on appeal.

The section of the statute, above cited, also provides:

“If the court shall determine that the commission has acted within its power and has correctly construed the law and facts, the decision of the commission shall be confirmed; otherwise, it shall be reversed or modified; provided, however, that in case of any trial of fact by a jury, the court shall be bound by the decision of the jury as to the question of fact submitted to it. In case of a modification or reversal, the circuit court shall refer the same back to the commission with an order directing it to fix the compensation in accordance with the findings made by the court; provided, that any such award shall be in accordance with the schedule of compensation set forth in this act.” Section 49-1843, Oregon Code 1930, as amended by Chap. 178, Oregon Laws 1935, at p. 263.

The question thus presented is whether in those cases, where the commission holds that the application for compensation has not been filed within the period prescribed by law, and therefore the commission rejects and dismisses the claim for compensation, it thereby becomes necessary, in order to support an appeal from such action of the commission, for the claimant to include in his petition for rehearing and com plaint all of the facts and details of his injury necessary to be considered in disposing of the case on its merits.

It would follow, if such construction of the statute be approved, that it would thereby be incumbent upon the trial court to hear proof thereof and make findings thereupon. It would also follow that the commission would be required to fix the compensation in accordance with such findings provided that such award was in accordance with the statutory schedule of compensation.

We think that these provisions of the statute should not be so construed. The result of such construction would place upom the trial courts much unnecessary work of a character best suited in the first instance to the facilities, conveniences and agencies of the commission. On the other hand, if the course, which was taken herein, be followed, many times, after an investigation by the commission, no issue will be made upon the character of injury, its resulting degree of disability or the amount of compensation that should be awarded.

The section of the statute, above cited, provides that an appeal in cases of this character shall be perfected by filing with the clerk of the court a complaint, as provided in civil actions at law and that after issue joined thereon by the commission, the case shall proceed as other civil cases, provided that either party thereto may demand a jury trial upon any question of fact. Chapter 178, Oregon Laws 1935, p. 263.

There is an analogy between the instant case and an action at law where a demurrer to the complaint has been sustained and the action dismissed on the ground that the action was not instituted within the time prescribed by the statute of limitations. Assuming that the action at law was one in which, unless an avoidance of the statute could be shown, the complaint would be vulnerable to a demurrer, but the complaint contained the statement that after the accrual of the cause of action, defendant departed from and resided out of the state or concealed himself for such a length of time that the filing of the complaint was within the legal period of limitation, and that notwithstanding such a statement in the complaint, the court sustained a demurrer and dismissed the case on the ground that the cause was not instituted within the prescribed statutory period, the procedure on appeal in such a civil case would be to determine whether it appeared on the face of the complaint that the action was or was not commenced within the time required by the various provisions of .the code. In such an action the determination on appeal would be that the demurrer was improperly sustained and that the action should not have been dismissed on that ground; but the appellate court would not concern itself with the question of the validity or invalidity of the chose in action which constituted the basis of plaintiff’s complaint. In the first instance that question should be determined by the tribunal created for hearing such causes.

There are many civil cases differing in their procedure one from another. An action of claim and delivery differs widely in its procedure from one of forcible entry and detainer or from any civil case wherein a general verdict will suffice. This is said only to indicate that the character of the proceeding and the question to be decided therein must be considered in determining the procedure to be taken.

We hold that plaintiff’s petition for rehearing and complaint were sufficient to give the circuit court jurisdiction and to uphold the material and relevant findings of the trial court and jury. Moreover, because of the inferences which may be drawn from the testimony herein, we are of the opinion that the testimony adequately supports such findings.

Plaintiff’s complaint plainly alleges that his claim for compensation was filed by the commission.

We quote paragraph VI of plaintiff’s complaint:

“That in truth and in fact the said claim was filed by said State Industrial Accident Commission and was considered by said State Industrial Accident Commission and the said Commission thereby acquired and assumed and exercised complete jurisdic(tion) over said claim and did examine the plaintiff and applicant therein for compensation, and did, upon the rehearing, receive evidence of all the facts pertaining to said injury and the failure to report the same and the reasons therefor and did adjudicate all of the said facts upon the merits of the cause.” (Syllable and parentheses supplied.)

The initial paragraph in plaintiff’s petition for rehearing is as follows:

“Comes now the undersigned E. B. Wooldridge and respectfully petitions the State Industrial Accident Commission for a re-hearing of his claim heretofore filed and the order of April 5, 1938, denying the same and respectfully, for grounds of re-hearing alleges:” (Italics supplied.)

Paragraph III of plaintiff’s petition for rehearing contains the following statement,

“that this employe did not know until he filed his claim, herein, within one year, that the said lobular abscess was caused by said injury * * * and the loss of time and operation was caused by the said accidental injury.” (Italics supplied.)

It is therefore apparent that plaintiff’s petition for rehearing, as well as his complaint, contains averments of the filing of his said application for compensation.

The jury found that the commission permitted plaintiff to file his claim before the expiration of one year from the date of his injury. The court is bound by that finding; therefore, this is not a case where the sufficiency of a showing is being tested upon which permission is sought to file an application for compensation at a time more than three months and less than one year after the injury occurred. It is a case where an application for compensation was received and filed and thereafter rejected because not filed within the three months period next following the accident notwithstanding that it was filed within a year after the accident occurred.

There is nothing in this record that indicates that the commission, in the exercise of its discretion, was not wholly warranted in receiving plaintiff’s claim. We do not hold that the commission could not have prosecuted an inquiry upon the showing made prior to the filing of such a claim. Where such an inquiry is seasonably made, that is, before the filing of the claim, if the commission should hold the showing to be insufficient, an appeal would present the question whether there had been an abuse of discretion on the commission’s part in refusing to accept the claim. There is nothing in the record to the effect that no showing was made as a basis for making a deferred filing of plaintiff’s claim; and in the absence of anything to the contrary, we are warranted in applying the presumption that legal duty has been regularly performed.

Plaintiff’s testimony discloses that at the office of the commission, in the presence of one represented as a member of the commission, plaintiff fully explained the circumstances of his injury and stated the reasons for his delay in tendering his claim for compensation.

In the commission’s answer no allegation or claim is made that any deception or fraud was practiced upon the commission to induce the commission to permit plaintiff to make the deferred filing of his claim. On the trial in the circuit court no testimony was given by the commission.

It is argued by the commission that the only ground for reversal urged in plaintiff’s petition for rehearing and complaint is an alleged abuse of discretion on the part of the commission in refusing to permit plaintiff to file his application for compensation; that plaintiff abandoned that claim at the trial; and that such alleged abandonment had the effect of leaving plaintiff without any basis for his appeal.

We cannot concur in this view. As stated, plaintiff’s application for rehearing and his complaint disclose that plaintiff’s claim was received and filed. That fact was one ground for reversal urged by plaintiff in his appeal to the circuit court from the order of the commission. It was not abandoned at any time. In the present state of the record, the contention that the commission abused its discretion in refusing to permit plaintiff to file his application may be considered as mere surplusage. No motion to strike it as sham was made; and the commission could not have been misled in any way, because it was the custodian of plaintiff’s application at all times after it had been filed.

We hold that the action of the commission in permitting claimant to file his application for compensation, giving said paper a claim number, indicating thereupon the number of his employer’s account with the commission, directing the plaintiff to undergo a physical examination by one of the commission’s examining physicians, and thereafter proceeding to hear plain tiff’s application for rehearing was a proper exercise of its discretion in the light of the facts as disclosed by this record.

We think, however, that the commission should not thereafter have rejected plaintiff’s claim, because it had not been filed within three months after the injury.

The commission calls our attention to the case of Lough v. State Industrial Accident Commission, 104 Or. 313, 207 P. 354, in support of its statement that an application for compensation in nonfatal cases must be filed within three months after the occurrence of the accident causing the injury. That case was decided on June 6, 1922. In 1925, the statute was amended by virtue of which amendment discretion was expressly given to the commission, upon a proper showing, to permit the filing of an application for compensation in nonfatal cases after the expiration of three months but within one year from the date of the injury. The doctrine of the Lough case must be conformable to this amendment. In other words, that doctrine is that a claim for compensation must be filed within the time prescribed by statute.

The Rohde case, 108 Or. 426, 217 P. 627, also cited by the commission, holds that the mere receipt of a claim by the commission does not estop the commission from questioning its sufficiency. In the case at bar, there is no record that the commission questions the sufficiency of plaintiff’s application for compensation. The commission’s only objection thereto, of which there is a record, is that such application was not filed within three months.

The commission also insists that the findings of the jury to the effect that plaintiff’s present disability was caused by the accident occurring on June 25, 1937, and resulting in a condition, known as a pus sac or empyema in Ms left chest, should not be deemed binding upon the commission.

We think that there was no impropriety in alleging such facts in plaintiff’s application for rehearing and complaint; however, in the present state of the record, they are merely matters of inducement. These facts, if true, would tend strongly to cause plaintiff to urge the commission to permit him to make a deferred filing of Ms claim. Plaintiff testified that he talked to the gentleman in the office of the commission, who was called by the lady in charge of the office and said by her to be a member of the commission, for ‘ ‘ thirty or forty minutes, maybe an hour”; and that during all that time he was talking about nothing else but the accident and the result of it. The report of these facts would incline any reasonable person to permit a deferred filing of a claim for compensation based thereon. For these reasons, the testimony tending to prove such facts was admissible.

The only question necessary to have been decided on appeal was whether plaintiff’s claim had been filed by the commission within one year from the alleged date of the injury sustained by plaintiff while employed by Mr. Christianson. For tMs reason, we hold that as to the question of the character and extent of plaintiff’s injury, and the further question whether his present disability was the result of his injury on June 25, 1937, the verdict of the jury cannot be considered as an adjudication. The purpose of the verdict has been accomplished in deciding the question before the court and its effect should not be further extended.

The questions arising upon the commission’s objection to the admission of Dr. Howell’s testimony do not affect the issue whether or not the commission filed plaintiff’s application for compensation; and, hence, it is unnecessary to discuss them.

The commission argues that a deferred filing, which it is within the discretion of the commission to permit or to refuse, cannot be made upon the direction or authority of but one commissioner. We are not inclined to disagree with that principle; but in the case at bar no member of the commission testified. We have the record of the receipt of plaintiff’s application at the office of the commission; the fact that it was given a claim number, the number of the employer’s account was placed upon it, it was stamped with the date of its receipt, the plaintiff was directed to undergo a physical examination by one of the examining physicians of the commission, the claim was rejected by an order of the commission, an application for rehearing was granted, a rehearing by the commission was had and testimony was taken thereon. This course, not being contradicted, supports the finding of the jury, that the commission, not merely one member thereof, permitted plaintiff to make the deferred filing of his claim. Obviously, a reasonable inference could be drawn therefrom by the jury that the person, who received the application, placed upon it the endorsements mentioned, and directed plaintiff to undergo an examination, was authorized so to do by the commission.

For these reasons, the judgment order of the circuit court is affirmed and this proceeding is remanded for such further action as may not be inconsistent herewith.

Rand, C. J., and Bean and Rossman, JJ., concur.

Reargued on rehearing April 4; former opinion reversed May 21, 1940