*1 Argued 19, 1952, December affirmed December motion attorney’s January 21, fee allowed GREEN v. STATE INDUSTRIAL ACCIDENT
COMMISSION
Boy Assistant Attorney General, him Portland, argued cause for appellant. With on the George Neuner, brief were Attorney General, H. Salem; Ray Lafky, Assistant Attorney General, Salem; T. Gillard, Walter Don G. Swink, Attorneys General, Assistant of Portland. Jr., E. Evans
Walter argued the cause for re- brief were Krause On the spondent. & Evans, Portland. Chief
Before Justice, and Rossman, Brand, Justices. Latourette, Tooze, Warner J. TOOZE,
The defendant State Industrial Accident Commis- appeals judgment sion of the circuit court county, awarding compensation perma- Multnomah plaintiff Morgan nent H. Green. The case was tried to the court without inter- jury. vention aof year subject employed
In the 1943, while provisions Compensation Law, the Workmen’s arising personal injury by sustained accident employment, his out of and the course of caused violent and external to his means. The was Part of the treatment for consisted back. spine “spinal operation of an known fusion”. compen- Defendant his claim with an award of closed partial disability equivalent sation for *3 per function of an the maximum arm, 100 cent loss of permanent partial disability for an for award figured type. disabilities were in of that that time At plaintiff degrees, made to amounted to and the award degrees. 96 industry, place and in his
Plaintiff resumed subject again employed August, 1949, while Compensation Law, he provisions of the Workmen’s injury by personal accident. This another sustained substantially also to his back was latter injury. Again, part the first as was thereof the same opera- plaintiff had another part treatment, a of his as spinal spine fusion. This latter known as a his tion on opposite and the scar spinal side, on the fusion was longer approximately than three inches was therefrom operation. plaintiff’s first operative scar The at the of trial a parties stipulated time if called qualified physician testify were medical he would that “as the result expert, testify proximate n of injuries of plaintiff’s August 18, plaintiff sustained a disability equivalent of of per or, cent loss function an measured arm”, of In 1949 the degrees, degrees. in- legislature creased the maximum number of for of degrees loss an of loss of function an from 96 arm, arm, degrees to 132 degrees. § as amended OCLA, ch 1949. 537, § Laws
Defendant all medical paid hospital bills incurred on account last his injury, paid for his total compensation period dis- temporary ability, but, claim for upon closing compensation, refused to make further award of for compensation permanent partial disability. refusal
Defendant’s to make award compen- sation permanent partial disability was based upon proposition had already been awarded to 100 cent loss of equivalent per function of
an arm as the result of his first accident, and an award function of an per cent loss of arm being limit allowed under the no law, recovery could had for additional partial disability for further to the same injuries part plaintff’s body. rejected
The trial court the contention of defendant. It and entered of fact findings made and conclusions thereon, based entered law, and, judgment against defendant claim remanding plaintiff’s for compensa- *4 and tion to defendant ordering defendant “to cancel order 6, and aside its of October 1950, set and to enter an awarding plaintiff order perma- partial disability equivalent per
nent to 50 cent loss degrees, injuries an arm, of function of or for the August on in 18,1949, sustained accordance with him Compensation provisions of the Law.” Workmen’s gave judge able trial careful The consideration litigation. principles legal in The involved this considering dispute. in After facts the conten- were respective judge parties, prepared tions the trial opinion a memorandum in which decided and filed he impressed reasoning with the the issues. We are accurately opinion it and believe memorandum applicable adopt to the situation. the law We states Omitting opinion opinion of this court. as the follows: cause, it is as title of the plaintiff the above action “The proximate as a result of such 1943, back injury per- operation known as a fusion was an plaintiff Subsequent operation to said was formed. partial disability permanent given an award per equal arm, cent loss of function an to 100 degrees, said the time of was which at award an un- maximum disability. scheduled August 1949, the sustained “On injury, proximate result of second back operation back a second fusion such second necessarily performed. Plaintiff in the within was is that he entitled to contends action disability re- additional award injury. August sulting from the appear from evidence that the “It would opposite operation fusion the second is scar operation, but extends three first scar the inches parties respective higher back. The on the respective stipulated through counsel their can open if under the law award court that
165 be made to the herein on account properly plaintiff of permanent disability a qualified doctor of testify medicine if called would that the plaintiff suffered a permanent partial disability proximately from the to his resulting injury back August of 50 cent lost function an or 18,1949 arm, 66 per degrees.
‘ ‘ Counsel for defendant contends that by vir tue of (3) Subsection Section 102-1760, O.C.L.A., as follows, which to-wit: provides “ In all other ‘(3) cases of injury resulting in the number permanent partial disability, of disability shall be degrees computed by de- the effect termining disabling of such injury as to the loss of use of compared any member named in the above schedule; not exceeding, 132 however, degrees.’
an workman suffering unscheduled dis- in or more abilities two accidental injuries is limited to a maximum combined of 132 award degrees, and that whereas received a plaintiff maximum for an award unscheduled as a result of back, 1943 to his the plaintiff is not to further entitled partial award as result of unscheduled disability from of August 18,1949, his accident save and except for statutory increase the maximum award for 96 unscheduled disabilities from degrees in effect at time of the accident degrees time at the of the accidental effect of August Counsel for defendant 18, 1949. Commission con- be would entitled to cedes an award degrees, being per of 18 cent of such increase. appear It would defendant’s Court that even under of the case theory the plaintiff would of 36 entitled to award degrees. However, of the final conclusions in view reached unnecessary it becomes Court give further con- this sideration to of the case. aspect for both parties recognize “Counsel problem governed largely by is Section provides O.C.L.A., follows, which to-wit: “ Future 102-1763. Further accident: ‘Sec. compensation. a further accident occur Should receiving compensation for to a is workman who disability, temporary paid been or who has compensation dis- awarded ability, further for such his award regard be made with accident shall *6 injuries past combined effect of his and his receipt money of for such disabilities/ the Prior to its amendment above (h) of Section section was known as Subdivision Oregon provided fol- 49-1827, Code, 1930, lows, to-wit: “ a to a further accident occur work- ‘Should monthly already receiving payment man a under disability, this section for a previously or who has been payment recipient lump sum the of compensation shall act, under this his future be adjusted according provisions other of the regard
this section and with combined injuries past receipt effect of his and his of money under this act/ Oregon (h) 49-1827, “Subdivision Section interpreted by our 1930 was Court Code, Supreme vs. Accident in the of Cain State Industrial case [37 1072]. 149Ore. 29 P2d 96 ALE Commission, position for takes the defendant “Counsel subsequent in the to the decision Cain case (h) legislature amended Subdivision Section Oregon purpose express 1930with 49-1827, Code, suffering limiting injured un- workman than one accident to disabilities more scheduled recovery dis- a combined recovery ability equivalent to the maximum (3) provided Subdivision of Section 102-1760. for in giving to the briefs “After careful consideration by has reached the counsel Court submitted to Subdivision that the amendment conclusion Oregon (h), Section 1930 was not 49-1827, Code, passed purpose for the counsel for contended (h) It defendant. will be observed that Subdivision Oregon of amendment Section 1930 before the Code, provided: * “ his future shall be adjusted according provisions the other * *’ this section upon quoted portion “In reliance the last above (h), of subdivision Section 49-1827, Code, might very 1930 it well contended that it was legislature by of the intent the inclusion of said provision suffering to limit the workman unscheduled or disabilities two more accidents recovery to a maximum combined equivalent to the maximum re- monthly payment under this section for disabilities viously covery provided for unscheduled disabilities where this act * *’ (1) a workman was (2) * *’. recipient where a workman lump * already receiving sum [*] payment has been under pre- Supreme our “While Court in the case did Cain expressly pass upon interpretation to be given quoted portion the above of the statute, the *7 Supreme component of Court’s discussion various parts the very might said of statute have well called to legislature of attention the of members the the possibility of such a contention and such a con- struction. “By eliminating quoted portion the above of (h) Subdivision of Section Code, appear legislature 1930 it would the to Court the desired to indicate that was not it its intention to suffering limit an permanent workman unscheduled partial disabilities more than one acci- recovery equivalent a maximum dent to combined recovery provided to maximum the unscheduled partial permanent disabilities in one accident. Supreme in the case, Court Cain “Our as well many prior subsequent, as in other both and cases, has the law must held that workmen’s given interpretation. have a liberal We the possible by of a case of a workman who virtue brain injury for he received a maximum award which has disability, partial permanent unscheduled adjusted through the use of such award has become doing involving type to labor, manual some of skilled work subsequently injury to his and who suffers wholly by is back virtue thereof rendered unable carry prior occupation pursued on he to the such injury. appear the in- second It would Court objects compatible the workmen’s com- with of deprive pensation such a of law to workman award whatever connection injury resulting in his un- with second accidental ground on that he had scheduled previously a maximum received single injury resulting with a award in connection disability, as a result of his brain unscheduled injury. reading (3) of “From a careful Subdivision be noted 102-1760,O.C.L.A. it will that said Section section injury’ provides disabling ‘the effect of such appear by injury.’ It would to the Court ‘such injury’ injury legislature ‘such the from which intended particular claim is made. A liberal opinion interpretation section in of the of this require that the limitation affixed to would Court injuries only apply particular to the unscheduled particular from a results accident. which stipulation appearing from the to the Court “It respective parties qualified of counsel testify expert if called would that with medical regard combined effect dis- August in the accident of sustained abilities sustained in accident his disabilities 1949and receipt money past for such dis- and his proximate plaintiff as the result of the abilities August back to his on accidental further suffering partial disability is 1949 equivalent per cent loss function of an arm,
169 It conclusions degrees. follows by respect reached the Court with law that hereinabove is entitled to expressed in the action. degrees award of 66 within this 24th Portland, “Dated Oregon, day at 1951. December, Charles W.
“[Sgd.] Redding Judge.” Compensation for the only
is awarded purpose compensating workman, for the aby measure suffered but injury also to assist him in himself so as to be able readjusting follow The again occupation. law contem gainful injured may, workman plates perhaps become in some will, industry again employed unjust if, gainfully It would indeed be while capacity. suffered another accident workman employed, in additional resulting proximately any he denied therefor. were disability, intended legislature We do not believe such Law must harsh result. The Workmen’s Compensation just It is a liberal always given interpretation. second involved the coincidence that plaintiff’s in the as that first body same his part bearing have no upon plain fact can accident, to compensation tiff’s right the second result of accident. suffered as the
actually partial disability first permanent Payments terminated. had since long award amendment of subd. (h) the 1935 In opinion, our OCLA) (now 102-1763, § Code, § nor to, it, did legislature by the intended was not in Cain v. this court rules announced change the Commission, 149 Or Accident Industrial State ALR 1072. P2d *9 opinion solely is said in
What this has reference separate injuries separate to received accidents. We give argument no consideration to the of defendant respecting segregation injuries arising the of various separate out of the same accident and and distinct awards therefor. That question case, we, is not involved this and therefore, upon express opinion it. no judgment is affirmed.
The Respondent’s Attorneys’ Motion eor On Fees Krause & Evans, Portland, the motion. Chief Justice, Before Brand and Lat *, Rossman, Justices. Tooze, *, otirette* Warner TOOZE, J. upon is before us
This matter motion attorneys’ as an the allowance of fees incident by judgment this of the of the the affirmance court appeal by The was taken the trial court. defendant opinion Industrial Accident Our State Commission. against affirming judgment defendant was the handed but we did include therein 19,1952, down December attorneys’ fees in this court. We allowance request point that no was made therefor out, however, motion was filed. until the instant attorney’s may fees or should In all where cases appeal, practice by on the better this court be allowed application therefor the brief of is make party This is in the interests of a thereto. entitled prompt efficient administration of the busi and more the court. ness of
[**] [*] Chief Chief Justice when this decision was Justice when original decision rendered. was rendered. by as amended cb 102-1774, OCLA, Section provides as follows: Laws, “ * *# may judg Appeals be taken tbe court in other eases, ment the circuit by appeal [State in Industrial Accident of an commission cases Commission] from an adverse judgment if court decision the circuit affirmed, the claimant shall circuit court is attorneys [sic] to be fees, fixed allowed compensation.” in addition to court, express provisions plain- of this statute, Under attorneys’ allowance fees on tiff is entitled payable appeal. The fee so allowed is *10 out of the this is in Commission and addi- fund, Industrial Accident chargeable, awarded tion, plaintiff. record in this have before us the case, We we find that thereof, the sum examination plain sum to be allowed the a reasonable is $250 ’ Spicer attorneys appeal. v. fees on this tiff as Benefit Ry. Emp., P2d 574, 1107, Or Ass’n. of ALR 517. P2d may, amount add this therefore,
Plaintiff appeal. him awarded on costs