215 P. 881 | Or. | 1923
Although the notice of appeal was filed within sixty days from October 13th and purports to give notice of appeal from both the final action of October 13th and also from the alleged decision of December 1st, the plaintiff waived any right that he may have had to question the order of October 13th, for he expressly confined himself to the issue of aggravation; and therefore the only questions for decision are connected with the subject of aggravation.
“It is not contemplated by the statute that a new trial shall be granted and the case reopened before the commission on the old application. Neither is it the rule that a modification or change with respect to former findings or orders is purely discretionary and beyond the right of appeal.”
In the case of Chebot v. State Industrial Accident Commission (212 Pac. 795), a majority of this court speaking through Mr. Justice MoCourt reiterated the doctrine of the Iwanicki case and ruled:
“The duty of the commission to award compensation in a case of aggravated disability traceable to the injury upon which compensation has been allowed as the approximate cause thereof, is not discretionary, and contains no elements of discretion not associated with its duty to award compensation in the first instance.”
See, also, Benson v. State Industrial Accident Commission (Or.), 215 Pac. 878. In the case of Degidio v. State Industrial Accident Commission, 105 Or. 642 (207 Pac. 176, 178), it was held:
“All questions arising out of the facts, circumstances and conditions surrounding an injury for which claim for compensation is made, existing and known at the time of the decision upon the original application, are concluded by the final decision upon*185 that application, unless an appeal is taken to the circuit court, and a different result obtained upon such appeal.”
Aggravation of disability gives a right to compensation equal in dignity to the right of compensation which arises in the first instance; and the denial of either of such rights enables the workman to appeal to the Circuit Court.
If an injured workman does not appeal from a final decision upon an original application for compensation but is satisfied with the award made by the commission on that application and after-wards files an application for compensation for alleged aggravation of disability he cannot upon appeal to the Circuit Court from an order denying such application for compensation for aggravation relitigate “questions arising out of the facts, circumstances and conditions surrounding” the injury “existing and known at the time of the decision upon the original application.”
The rulings thus far mentioned dispose of all questions raised in the instant case except the claim that the record is devoid of any evidence showing an aggravated disability, and the further contention that the plaintiff did not make a sufficient application for compensation for aggravation of disability. We need not notice the claim that the record is devoid of evidence of aggravation except to say that as we read the record the plaintiff submitted enough evidence to carry the question of aggravation to the jury. The only question remaining for examination is whether the Jensen letter was sufficient to serve as an application for compensation for an aggravated disability.
“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 statute contemplates an application in writing; and although the statute speaks of “blanks furnished by the commission,” this feature of the statute is merely directory, and consequently an application in the form of an ordinary letter is sufficient if it contains the requisite matter. In Section 6626 (i), Or. L., we read':
“If aggravation, diminution or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated in any case, the commission may, upon the application of the beneficiary, or upon its own motion, readjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments.”
In Section 6632 (c), Or. L., it is stated:
“If change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor. No increase or rearrangement shall be operative for any period prior to application therefor.”
It was held in Iwanicki v. State Industrial Accident Commission, 104 Or. 650, 658 (205 Pac 990):
“In order, therefore, for the claimant to obtain an increase or rearrangement of compensation he must make an application and show some change*187 of circumstances -which would warrant the desired increase.”
In Degidio v. State Industrial Accident Commission, 105 Or. 612 (207 Pac. 176, 178), this court said:
“To authorize a rearrangement of compensation, in the form of an increase of such compensation, the application therefor must show a change of circumstances that warrants such increase or rearrangement (Section 6632, subd. (c), Or. L.), and that the aggravation of disability for which the increase of compensation is claimed has taken place or has been discovered after the rate of compensation was originally established (Section 6626, subd. (i), Or. L.) a final decision upon such an application is a prerequisite to the right to appeal to the circuit court. ’ ’
If the letter written by Jensen of December 1, 1921, is not “a like application” within the meaning of the statute, then the judgment must be set aside because of the failure to file a sufficient application for compensation for the alleged aggravation of the disability. The fact that the’writing is not a blank form furnished by the commission and filled in by plaintiff ought not to invalidate the paper, for any writing containing whatever paper is required is sufficient. Indeed it appears from the evidence that the commission did not at that time at least have any blanks to be used by applicants for compensation for aggravation. Moreover, it is proper to state that the commission does not claim that a letter will not operate as an application; for the position taken by the commission is that the letter does not ask for compensation for aggravated disability but that it is a complaint that the award
We approach the examination of the letter, or application, with the view that it must be construed liberally and in conformity with the spirit and purpose of the statute. If the letter evidences an intention to ask for compensation for aggravation of the disability, it should be treated as a sufficient application; but if on the other hand it evidences nothing more than dissatisfaction with the award of October 13th and goes on the theory that the original award did not give to the plaintiff all that ought at that time to have been given to him, then the letter of December 1st cannot be treated as an application for compensation for aggravation; and in that event the judgment must be reversed.
The letter opens by reciting that on October 13th the commission “took final action.” The next sentence states that Grunnett ■ claims that he is still unable to work and that his condition is not improving. In this connection we may again direct attention to the fact that Grunnett was injured on August 24, 1921, and that he was awarded compensation for permanent disability equal to 4-4/5 months or a period ending subsequent to December 1, 1921. The next sentence discloses that so far as the writer of the letter is able to determine Grunnett “has some cause for complaint.” Manifestly the “some cause for complaint” alluded to was the “final action.” The next sentence states that “rather than take an appeal” the writer “would like to have the commission open up the matter and have another examination made.” Obviously the only action from which the plaintiff could have then appealed was the “final action” of October 13th to which he refers as
While the statute should be liberally construed and with a view of affecting its wise and humane purposes, and while the administration of the statute should not be fettered by an unyielding insistence at all times upon the exact observance of refined technicalities which can result only in hampering and obstructing and perhaps preventing workmen from obtaining all that they are entitled to receive, it must be remembered that the State Industrial Accident Commission is charged with very important public duties and that among those duties is the duty of caring for funds which are in the nature of
It follows that the judgment must be and it is reversed. Reversed.