*1 562
Argued May rehearing April 11, 31, petition affirmed July 12, denied 1961 HOLMES v. STATE INDUSTRIAL ACCIDENT
COMMISSION 2d 362 P. 371 2d 363 P. argued the cause for Portland, B. Olsen,
Clifford appellant. the brief Franklin, were Anderson, On *2 Portland. Jones & Olson, Attorney Enright,
Thomas General, C. Assistant argued respondent. him the cause for With on Salem, Attorney brief were Robert Y. Thornton, General, Ray Lafky, Attorney H. Assistant Salem. General, and Albany, argued Mark the cause for Weatherford, V. intervening E. him defendant, Conrad Gates. With on Waterbury, H. the brief was Yaehats. W.
Before Chief Justice, and Rossman, McAllister, and Lusk, Justices. Sloan, Goodwin J. ROSSMAN, appeal by plaintiff,
This is an Leona Holmes, judgment from a which the circuit court entered after by it had sustained made motion, the defendant plaintiff’s entry the close of the for the evidence, judgment involuntary nonsuit. The defendant plain- State Industrial Accident Commission. The alleged injury February át the her tiff, time on 8, was a 1957, waitress a restaurant known as Gateway Cafe of which E. Conrad Gates was the Although owner. Gates -became an intervener. way through cause made the courts the com- plaint pleading which the filed, that was in reality appeal the institution of an from the action plaintiff’s by taken claim the defendant, 656.288(2). Accident Industrial see Commission; ORS by challenged The action taken the commission and 561- appeal this 'in its order dated June 23, is recorded which reads:
1958, personal “That the claim of Leona for Holmes, injury by February accepted 8, sustained 1957, April dated 18, 1957, Commission Order disability temporary for total covering period February paid claimant said September 1957 to claimant 1957, and the partial disability granted permanent awards an arm in the amount of loss of function of 40% of function of an and furnished arm, loss 20% hospital and related costs. medical, “Having made a the em- determination that Grateway ployer, was a non-hazardous occu- Cafe, February pation on which said on date 8, 1957, employer having failed occurred, accident and said Compensa- to elect to come under the Workmen’s injury prior to tion Act the date February continuous 8,1957; sustained on under its jurisdiction, *3 “THE HEREBY COMMISSION ORDERS rejected for the that said claim be reason that employ injured employer in the an workman was of subject provisions of not the Workmen’s Compensation Act time at the she sustained her injury.” February accidental 8, plaintiff 1957, March filed with the de- 27, compensation. April application an for 18, fendant an entered order which stated: the defendant 1957, having finds that the claimant “The Commission temporary disability total from 2-8 to suffered approves payment until 4-8-7 herewith further order.” the defendant entered an order
October 17, 1957, plaintiff nearly been as “has restored which found self-support possible condition of mainte- she is of $2,376 nance” and that entitled award payable per at tbe rate of month. December 17, $110 the defendant entered another order which was upon compromise whereby granted based the amount in the of order was increased. June 17, 1957, October pre- the defendant 23, 1958, entered order which cipitated appeal. this We have noted that it terminated payments injured all “for the reason that the work- employ subject man was in the of an provisions Compensation of the Workmen’s Act February at the time she sustained her acci- 8, 1957, injury.” dental entry any
The record does not disclose that the of preceded by of hearing. the orders was a formal So far as we all know, were entered in the course of procedure, testimony informal that is, without independent presence witnesses and of the com- missioners. None of them least ruled, express subject words, Gates was to the Work- men’s Act or that his restaurant was place employment. a hazardous No one claims that owner Gates, restaurant says injury, which the she sustained an had elected under 656.034 ORS to contribute to the possessed Industrial Accident Fund. The restaurant electrically operated a small slicer which was used slicing of food items such as bread or meat; and, largely upon equipment, plain- based item operation tiff contends that of the restaurant was meaning hazardous within the of ORS 656.022. Until Oregon chapter the enactment of Laws 1959, section did not 10, ORS 656.084 include restaurants *4 category occupations. in its of hazardous We believe prior amendatory to the enactment of the 1959 Compensation statute our Workmen’s Act did not operation of deem the restaurants as hazardous. Hoff- 566 Broadway P2d 349, 519, 139 Or Hazelwood,
v.man 533, Okla Webster, v. and Plaza Grill 11 P2d 814, 818. 78 P2d in Compensation enacted as Act, Workmen’s
Our express provision, at least none no contained 1913, upon continu- defendant which conferred words, ing jurisdiction upon had taken it over claims power to time from time to make and no action, rulings previous changes orders, in its or modifications chapter findings. Oregon section 288, Laws 1917, and by inserting in it 13(e) this act amended the 1913 provision: jurisdiction power of the Commission from time and “The may continuing to time and it be shall respect changes with modifications or make such respect findings with thereto, or orders former jusified.” may opinion be its 5(c) chapter made the
Oregon section Laws part pertinent follows: act read as * * “* power jurisdiction and However, continuing, may, shall be of the Commission only, upon time make from time to motion its own change respect to former with or such modifications may opinion findings, awards as in its orders or appeal justified, from review such but no be proceedings had.” shall be provisions Act, of our Workmen’s subjects and 1925 amendments, of the 1917 reads: phrased in 656.278, OR'S as now jurisdiction power of the Commission “The may, upon continuing, and it its own shall be modify, change or termi- time from time to motion, findings, orders or awards if in its former nate justified.” opinion action is such the defendant had that after reveals evidence *5 paid plaintiff in accordance with the $4,689.90 requested legal order of de December it 17, 1957, partment plaintiff’s to recover from em Gates, ployer, paid amount he that should have into the assuming Accident he sub Fund, Industrial was ject legal to the Workmen’s Act. The department shortly advised defendant Gates engaged occupation was not in a hazardous and was subject juncture to act. At that the defendant entered its order of June as we 23, 1958, ruled, plaintiff have was not a workman seen, that of employer who was under the act and that therefore payments to her should cease.
By reverting previously quoted, to as 656.278, ORS empowers it will be noticed that it the defendant “change findings, or terminate its former orders or opinion justified.” awards if in its such action is defendant contends that the action which it took justified June was 23, 1958, because the was subject not a workman of an who was the act. It will be recalled that Gates had not elected engaged to come within the act and that he occupation. plaintiff argues in a hazardous empower ORS 656.278 does not the commission to given employer vacate an order which held that a subject According goes to the act. to her, no further change than to authorize the commission to the rate compensation. granting She views ORS 656.278 judicial power possessed by similar to that a divorce may judge modify support money who for orders but can pro- not vacate decree divorce. However, applicable visions of our laws which are to the modifi- materially cation of a decree of divorce are different 107.130(1) from ORS 656.278. ORS reads: judge power “The or court, has the thereof, modify any after a decree time set alter or aside, party, given, upon of either so much the motion may appointment provide for the of the decree as custody chil- of minor the care trustees, for thereof, both, or dren, for the nurture or education party suit; for of either the maintenance any judgment a final as to instal- decree is such money provided payment therein ment or up party makes accrued to the time either which has *6 motion.” such a 107.130(1) does au- not be noticed
It will OKS any a “at time after court to vacate decree thorize the part given” of matri- which severed the bonds juris- mony, not limit the does whereas OKS 656.278 any specific part of of the defendant diction previously taken. it 'had action which support plaintiff, of res in her contention of depends upon holdings judicata, v. in Blackburn City Hughson 1160; P2d v. 428, Idaho 207 Olson, 69 111; Mich 260 Massa Kalamazoo, 36, 271 NW Bonding v. Ac and Insurance Co. Industrial chusetts P F. 1050; 176 168 & Cal U.S. Commission, cident App 846; v. SE 755, 199 58 Ga Neal, Co.C. Hoffmeister Accident 176 Commission, Industrial Or v. State P2d 834. supra, claimant-appel- v. Olson, In Blackburn operate (Blackburn) a was hired landowner lant clearing of land so as to render it a bulldozer agriculture purposes. employed While so for suitable injury pursuant employer’s an to his and, he sustained suggestion, a claim with the Idaho defendant, filed Company. Still later he and his em- representative ployer a met with the Idaho Com- Company thereupon “a pensation and memorandum summary agreement was entered into and report supplemental employer’s was made out.” The papers properly approved were filed and were tbe according Industrial Accident Board. Further to the agreement, such decision, “Under the claimant was paid compensation disability temporary total from * * employer surety sought Still later the and his compensation ground vacation on the that the employed agricultural pursuit claimant was in an that the had elected to submit himself compensation Agricultural pursuits to the act. were within the Idaho act unless the em- ployer elected to embrace act. However, section provided: of the act
“An award of the board in the absence of fraud, shall except 30 either final and parties, be conclusive between the provided section 72-607,unless within days copy parties, after has been sent to the
party appeals Supreme Court.” compensation agreement The decision held: “The approved by the board had the same effect as an award citing supporting of the board.” After decisions the court continued: *7 consistently by “It has been held this court that provisions
under the of Section 72-608, an I.C., award in the absence fraud, of becomes final and * * appeal if no conclusive is taken *.” compensation It will in be noticed that that case was upon agreement, signed by awarded the basis of an parties, approval the which had received the of the Industrial Accident Board. Since no fraud was claimed powerless the court deemed itself to release the com- company pensation agreement. from the Hughson City supra, plain- In v. Kalamazoo, the of receiving public tiff, aid from the defendant municipality, required to was work and while so em- ployed injured. point agreement At was an for
570 compensation under the Workmen’s by plaintiff the de- Law was entered into Depart- by agreement approved fendant. The Industry. the defendant ment of Labor and Later pay- compensation application an to terminate made recipient ground plaintiff, ments on the as the that the employee, an the court held of was not but relief, compensation approval by department of the finding agreement to was tantamount a compensa- employee meaning an within of the holding tion act. In so the court declared: agreement “Approval an for of ordinarily con and the award made thereon is compensation. employee’s right clusive Lumbermen’s Casualty 220 Bissell, Mutual v. Co. 352, Mich. partment 190 A.L.R. The de 283, N.W. 28 874. authority rehearing grant is without fraudulently to one who was induced make (Southern Surety compensation agreement v.Co. 701), Mich. 215 N.W. and the same Curtis, 566, 240 apply agreement compen rule when the should agree into mistake. Such sation was entered department, approval by the order of ment, may possibly be im and the award based thereon equity upon ground peached in a of court Co., Port Huron Electric Smith v. Gas & fraud. Ingle N.W. v. Armour & 519, 292; Mich. 187 217 312. But this 569, Mich. 250 N.W. Co., proceeding. findings equitable fact Industry Department of Labor and are, the absence Comp. fraud, 1929, conclusive. Laws proceedings Depart Though § before the 8451. Industry strictly judicial are not of Labor ment Whittlesberger, (Reck 463, 181 Mich. 148 N.W. v. Sugar 771; Kirchner v. Mich. 1916C, Ann. Cas. 193), they may Mich. 173 N.W. be Co., attacked only provided by the manner law. department may Weekly payments awarded may not set but aside its orders reviewed, be
571 except (Comp. Laws accordance with statute 8453); § and then 1929, unless up days paid is within awarded 15 before the compensation, modify proceedings stop or to outstanding department, order of the are com only physical and then when the condition menced, injured employee issue. Beckwith’s Spooner, 323, Estate v. Ann. Mich. 971, N.W. 1916E, Cas. 886.” whereby
It will be method observed com- pensation could be terminated after it had been by commission-approved a awarded contract was so nothing from different that under ORS 656.278 gained any can be from further consideration of the Hughs on decision. Bonding
In Company Massachusetts and Insurance v. supra, Industrial Accident Commission, workman Kelley injury the name applied sustained compensation. the defendant commission for He employers Manley listed as his M.C. and Jesse Marks. April An award was made on 28, 1915, basis temporary disability. January applied he permanent disability rating for a ground on the injury developed permanent his had into a one. Ade quate application given notice to the in including good surer, statement that unless cause contrary application to the was shown the would be granted. Bonding The insurer, Massachusetts Company, objected proposed Insurance increase solely ground injury Kelley on the that at the time of employed by Manley only who was the indi vidual that the insurer had insured. The increase was granted. (Massachusetts Later the Bonding Company) and Insurance proceeding instituted the under review writ of review. Under it the court *9 insufficiency of evi- not set aside the award could held: dence. The decision * * “* findings original award de- and The Kelley employment of both in the that was clared injury. Manley finding ceeding This his and Marks at the time of any by pro- not attacked and award was provided in the and act, in review, proceeding long before the new had final become ** begun. It was conclusive apparent application It is noth- was denied. The guide holding ing in at can as a the case in that serve bar. Fidelity & v. Neal,
In Co. United States Guarantee supra, composed a H. Malcom and P. firm of G. Levin bridge. engaged of The in the a construction Neal Co.) Fidelity (United Guarantee States & policy a of firm insur had issued to the developed covering employees. It then firm’s ance required government the firm have the federal superintendent To meet that demand and foreman. weekly appointed at a Neal as foreman firm injury, wage sustained and the of Later Neal $30. by proceeding review was instituted him to under compensation. of The statement facts recites: secure * * “* single director found at Neal, The injured, employee was ‘a foreman time he was weekly wage Neal at a of Malcom and under $30 agreement independent special ship of his relation- partnership of Malcom and Neal, in performing accident, the time his serv- was, perform not incumbent him to ices which were capacity partnership as a member of his * * approved finding The board this on *.’ entire *” * * December 1937. affirming, ruled : court, single aof director to which “An award there petition no for review the full has been board prescribed or an act, filed within the time excepted to within award the full board not thirty days therefrom becomes final and conclusive as to the merits thereof.” materially
That situation is different from the one before now us. part v. Industrial State Acci- Hoffmeister supra, germane
dent which is Commission, before reads: issues us
*“* * questions are There no of fact involved. general A demurrer was sustained to the further *10 separate answers of the Acci- State Industrial * * *. dent Commission presents legal questions “The demurrer the as to whether the commission was authorized to modify disability permanent or diminish the award of total admittedly when there had been no change physical in the condition of the claimant. ** * $ -K' “* * * Since it is admitted that there has been change physical
no in the condition of the claimant subsequent findings to such award, are final Compen- conclusive: 71 C.J. Workmen’s (3). § Obviously, Acts, sation in view of the injury, change nature plaintiff’s physical there could be no fingers condition so far as his They gone are concerned. are forever. The com- impliedly mission, found that its award of June 27, injury plaintiff’s fingers to com- pletely deprived him of the use his hands. finding proper light Whether such was in the the record is immaterial proceeding. in this It only remained for the commission to award plaintiff unconditionally specific monthly al- provided lowance injury, statute. When the such in the instant case, as schedule comes within certain fixed compensation, commission, an body, no to exercise discretion
administrative has injured awarding compensation dne the about thereto.” attach no conditions and can workman awarded the commission which Since plaintiff to the act entitled the amount which commission was decision held receive, liberty that amount. to reduce just nothing re- decisions found the five We the defendant commission which indicates that viewed merely jurisdiction award because over the had lost Nor decisions declare that it. do those it had made powerless having defendant was the award the made fully appeared that the award was when it to vacate it will be that the defendant com- It recalled erroneous. April within 22 made the award of 18, 1957, mission days claim. filed her of the time grants Very likely purpose of 656.278 ORS jurisdiction “continuing” and which to the defendant change “modify, or terminate its former authorizes it findings, or awards” is to enable the com- orders promptly injured provide for an workman mission may modify, change it under assurance award if discovers that the award terminate the upon error. based judicata state courts hold that res
Some does *11 apply decisions. to administrative See Ad- Davis, page at Treatise, Law section 18.02 553. ministrative grants that noticed to the com- have ORS 656.278 We jurisdiction continuing over mission claims. Where continuing judicata jurisdiction doctrine is of res apply. generally Administrative Law Davis, does page 18.09, Larson, section Work- Treatise, Compensation (1960), Law, section In men’s 81.53. states: 18.09 Davis section »* [*] # The considerations affecting reopening developments to take account of new or new developments evidence old often differ from affecting those the correction of or mistakes shifts judgment policy. Usually or about law the search principle guide reopening for basic is futile; usually results must reflect the needs that are unique weighed each administrative task. Factors to be advantages repose, are the desire stability, importance of administrative policy, party freedom reformulate the extent of degree reliance or haste in decision, first of care making general the earlier decision, the problem.” equities of each page In section 18.12, 626, Davis stated: “* * * relaxing Seasons for the doctrine in- changing changing policy, changing clude law, facts, strong public error or undesirable avoiding perpetuation interest policy in some concrete con- equal parties texts, need for treatment of whose are circumstances same, and other subtle complex factors in various combinations. asserting party estoppel “The collateral has the showing burden of that issues are identical and they that proceeding. were determined on the merits in the first * * *” purposes We believe of the Work Act men’s will be better achieved en abling promptly to act commission even where its may incomplete—assured, be information however, possible through that it can correct mistaken award In later action. our belief ORS is 656.278 intended to prevent operation the normal of the doctrine of res judicata. That does mean that when the commis capriciously has entered an order can sion terminate says itself it. 656.278 ORS modification, only change or can be termination made if the com justified.” believes “such action mission In *12 sup- if must challenged, the commission, other words, with termination modification, change port present plaintiff’s In the case reason. Compen- himself to the Workmen’s not subjected
had fund and was was not contributor sation Act, Accordingly, in a hazardous occupation. engaged entitled to compensation, of June 23, its order the defendant supported thus reason. with sound reviewed, five decisions above Reverting remembered that Hoffmeister case will be for its termination justification commission no gave was in the exact amount workman’s award which In two of the other cases fixed. statute upon agreements awards were made parties not in a the awards were position who challenged the agreements. impeach from the follows foregoing judgment
It affirmed. must be of the circuit court ON REHEARING *13 Appellant’s por Behearing On Petition petition. Clifford B. Olson, for the Portland, J. ROSSMAN, plaintiff-appellant petition has filed a for a
rehearing complains, in part, which she because our opinion Bandy did Beggs not mention v. Norris, Simpson, 222 1,Or 342 P2d 839, P2d 445, which plaintiff her brief had cited. The contends that the Bandy requires holding case that the order entered April the defendant commissioner payment plaintiff the ordered to the of work- compensation adjudication men’s was under the judicata of res plaintiff’s doctrine the effect that employer, engaged Conrad E. Grates, in a hazard- occupation injury. ous the time of her writing In opinion thought we our that the facts and the issues of Bandy sufficiently case were unlike those of awaiting one decision that a review of it was not called for. (Industrial
In the case now before us defendant Commission) paying Accident plaintiff after $4,- under a (Conrad 689.90 belief that her E. Grates) subject Compensation Workmen’s order of
Act vacated and annulled the engaged in a was not when discovered Gates voluntarily employment and em- hazardous had braced the act. From action the commission doing appealed plaintiff court, circuit so body appealed action to this court. and from the accepted previous as the fulcrum of decision Our upon the confers defendant ease ORS 656.278 which jurisdiction continuing its “orders or commission over “modify, change together power with awards” them. terminate” Bandy case which cites was not it was an Act; the Workmen’s
under Oregon Employers’ Liability upon the based action injured employed plaintiff had been while *14 Law. Building operator the Central in Port- as elevator action at law she named as defendant a In her land. Beggs 'Simpson and and entitled averred Norris, firm employer. managed That firm her it was agents Building as the of the estate of Rose Central owner structure. The action deceased, White, plaintiff in a verdict for the which resulted was at law 'by preceded filed her with the claim, Industrial in which she as named her em- Commission Accident ployer of Rose deceased. White, the estate The estate to the Industrial Accident Fund and a contributor was Compensation subject Act. The to Workmen’s was paid plaintiff and before the insti- was allowed claim against Beggs Simpson. and Norris, her action tuted pay- the claim and allowed directed which order questioned never vacated. thereof ment going on we take note of a distinction Before germane between the case at bar and deem we which Bandy bar the In the case at selected case. plea judicata her subject res matter as the April which the defendant commis- order of challenged vacated. the order She had, however, sion through brought appeal it which vacated Bandy In the this case to this court. case order commission had entered and which which the defendant plaintiff (Mrs. Bandy) employee ruled that the White, of the estate of Rose was still deceased, and when she her action at full force effect instituted Beggs law which named her and Norris, Simpson. questioned In has never order been fact, or vacated. Bandy Beggs
In the case the defendants, Norris, Simpson, and filed answer which averred that the answering estate of Rose White, deceased, plaintiff’s employer was the defendants, at the time injury. alleged her Bandy It further that both Mrs. subject tire estate Rose White, deceased were to the Workmen’s Act. In addition up Bandy compensa- set that Mrs. had filed a claim for tion with Industrial Accident Commission and that paid claim. the commission had her the amount of her Bandy’s Upon (claimant’s) Mrs. motion the answer just summarized was stricken. Bandy brought
The decision of case forth four opinions. majority opinion One was the and another specially concurring opinion was a written Mr. just Justice Lusk. Both held that the answer men- tioned should not have been stricken. The other two *15 opinions were concerned with the issues now before although dissenting opinion. us, one of them was a
We mention once more that in the case at bar the granted compensation order which which the plaintiff depends was vacated and that from the order expunged which it from the commission’s files the plaintiff prosecuted appeal which pending is now pointed was the order have out that
before us. We commission discovered when the defendant vacated engaged plaintiff’s in a was not that the occupation, had to submit that he not elected hazardous Compensation Act and was himself to Workmen’s the Industrial Accident Fund. not a contributor to appeal previous opinion took that the note Our to the circuit Commission from the Industrial Accident ruling by 656.288(2). A court was authorized ORS body quasi-judicial sub which is an administrative jected by in the court can not to review circuit statute through invoking preserved its review be from' phase strange or novel of doctrine of favor some judicata. res Yet the seems believe April defendant commission which the made the order place in took its an area which is off somehow 18,1957, limits and that the order not be courts must wrong. judicially She think is, course, molested. We considering judicata the doctrine of that in lieu res give attention to 656.278from we we ORS must quoted part presently previously and which we will in full. set forth Bandy compensation, case the order
In the as we pointed was never vacated. In no one out, fact, have money paid sought The vacation. was ever Mrs. kept majority opinion Bandy it. The she in the Bandy “We assume that it will not neces- said, case be authority sary to the effect that the to cite Commission power, duty, only has. the but to determine in right compensation.” instance, the first duty performed doing and in so commission Bandy which declared that Mrs. an order entered employee the estate of Rose White, deceased. have never said, we vacated. order,
581 Bandy parts the of the now take note willWe plaintiff opinion the cites. which Bandy majority opinion after in the case, The ALB, citing stated: an annotation in are to the the there noted “We think decisions finding employer and that once the effect relationship employee in- is made the tribunal duty, and is final with that the decision trusted conclusive until set aside.” pause set the words “final and conclusive until We on opinion in the case recalled that our aside.” It will be quoted part now at bar of OES 656.278 which states: jurisdiction power
“The of the Commission continuing, may, upon shall be its ownmotion, change modify, time from former to time terminate its findings, opinion orders or awards if in its justified.” such action is purpose just quoted section our laws is expedition the commission to act with enable prompt help knowledge call for with eases which subsequent investigation if discloses that may change ill action was advised it earlier its course. nothing previously aware of stated in are our We opinion in the case at bar announced which is at vari- just quoted that we the sentence from ance with Bandy opinion in prevailing case. citing Bandy plaintiff, depends case, specially concurring opinion
principally opinion in that wrote case. His held Mr. Justice Lusk controlling plaintiff was whether issue “the that the maintaining damages precluded this action from Liability Employer’s Law fact that under applied an. award for and received she personal injury for the identical under the Workmen’s opinion Law.” Justice Lusk’s took note of the fact did claim she was any exceptions within set forth in the act that injured employee to sue enabled someone other *17 employer. his It than ORS 656.312 656.154. added: “* * * position beginning from the was, ORS Her provision and still 656.152(2) against the she can avoid of is, that recovery by giving double back money she received from the Commission. # # #33 specially concurring opinion
The then continued: a* * # provides But that section that: ‘The right to receive such sums is in claims,’ lieu of all [*] # [*] presented plain- that case
Thus, situation that sought compen- tiff had and had an received award of long sation. As as the order award of remained un- expunged plaintiff money keep was entitled to accept and the commission could not its return. part opinion plaintiff of Justice Lusk’s that the especially relies reads as follows:
“A decision of the State Industrial Accident awarding compensation Commission to a workman disability necessity, findings for carries with of it, per- commission the workman sustained injury employed by employer subject while an sonal disability Act, to the and that such was result injury by arising out accident of and in the course employment. such Unless these conditions are present, jurisdiction the Commission is without * * * an make award. # # #
“* * * judicata it is While not res in the techni- party for sense, cal the defendant was not a to the as I proceeding before tbe Commission, does, judgment pur- for tbe have tbe force of it, view poses present It the fact of the ease. establishes plaintiff employee employer was the Compensation under the who was Law, Workmen’s * * *” compensation injury. awarded for an reasoning just quoted not at with variance anything Bandy which we have said in this case. In the spoke, Justice order when the commission’s ease, Lusk was in full effect. It had not been vacated or ex- any Accordingly, punged the commission or court. say, quoted “It words establishes the fact that as employee of an under Compensation Law, Workmen’s who was awarded injury.” all But in the case now us the order commission which at one before recognized time the aforementioned Conrad E. Gates subject Act Workmen’s expunged file from the defendant’s when it was dis- *18 in error. that its recital was covered Bandy and the one case now bar are unlike. right, the commission had the In both cases conferred by compen- upon it to vacate the order of 656.278, ORS previously had entered. In which the case at sation power exercised that the commission vacated bar prompted surely its action The facts its order. lacking in merit. deemed can not be obviously at bar which is not controlled In the case judicata but of res ORS the doctrine 656.278, recognized plain- had order which the commission’s subject Compen- to the Workmen’s tiff’s appeal vacated before this had been Act sation plainly authorized the defendant 656.278 filed. ORS very take the course which it had commission pursued.
doWe not believe that defendant’s orders entered under OES 656.278 constitute res (1) judicata. Nor do we believe that our previous decision contains any error. for a petition rehearing denied.