215 P. 591 | Or. | 1923
Lead Opinion
At the conclusion of the plaintiff’s case the Commission moved for a nonsuit upon the ground that there was no proof of service of the notice of appeal. However, the record shows that
W. T. Kirk, one of the commissioners, testified in part, that the notice of appeal was received by the Commission on February 11, 1922. The record discloses the following colloquy by counsel for the respective parties and Commissioner Kirk while he was on the witness-stand:
“Mr. Campbell: Have you the notice of appeal in this case?
“Mr. West: That is on file in the court.
“A. (Mr. Kirk): We have the copy served on us.
“Mr. West: There is no necessity to put that in. It is in the record. * *
“Mr. Campbell: What is the date of the appeal?
“A. (Mr. Kirk): The appeal was received by us i February 11, 1922.”
The transcript shows that prior to the entry of the decree the following affidavit was filed in court by L. B. Sandblast:
(Omitting title and jurat.)
“I, L. B. Sandblast, being first duly sworn, on oath depose and say, that I was, on the 4th day of March, 1922, and prior thereto, attorney for the plaintiff claimant, William McDermott;
“That on said day I filed notice of appeal from the award and decision of the defendant, State Industrial Accident Commission, to the Circuit Court of the State of Oregon for Multnomah County, with the clerk of said court;
“That on said day I forwarded to the defendant at Salem, Oregon, by registered mail, a copy of said notice of appeal so filed * * .”
“It shall be sufficient to give the circuit court jurisdiction, that a notice be filed with the clerk of said court to the effect that an appeal is taken to the circuit court from the decision of the Commission, the same to be signed by the party appealing or his attorney, and a copy thereof to be served by i*egistered mail on the Commission.” Sec. 6637, Or. L.
From the excerpt of'the statute quoted, it will be seen that the law does not require that proof of mailing the notice of appeal to the Commission shall be filed with or indorsed upon the original notice. See Streby v. State Industrial Accident Commission, filed May 1, 1923, ante, p. 314 (215 Pac. 586).
It is asserted on behalf of the Commission that the notice of appeal is also defective because it fails to show that the claimant was a resident of Multnomah County, Oregon. It is not necessary for the notice of appeal to show that the claimant was a resident of that or any other county. The statute is the measure of the matter necessary to be contained in such notice. Neither the Commission nor the court can add to the requirements of that notice, as enacted by the legislative body.
The next question that presents itself is a serious one. The claimant, as is shown by the record, sustained injuries and filed his claim because of a herixia. The Commission^considered the claimant’s application and the evidence offered in support thereof, and found that his application was in proper form and made within the limitation of time provided by law, and that he was an employee at the time of his hurt, and subject to the Oregon "Workmen’s Compensation
The claimant thus states his cause upon appeal in his brief:
“On January 26, 1922, the State Industrial Accident Commission awarded respondent the sum of $100.19 for hernia, but nothing for the other injuries, to-wit: Strain resulting in weakened abdominal wall, causing circulation of the blood to he impoverished and impaired, enlarged glands and abscess (see abstract of testimony, p. 71, et seq.), also weakened condition of femoral canal (see abstract of testimony, p. 75), also destruction of muscle tissue and scar tissue (see abstract of testimony, p. 77).
“Respondent appealed from the award of the Commission, claiming that he should be awarded compensation for the resulting injuries above mentioned, received at the time, and the direct result of the accident, in addition to the award for hernia, and also that the Commission had erred in classifying his injuries and condition as ‘temporary total disability’ under Subdivision (d) of Section 6626, Or. L., as amended by Chapter 311, Laws of 1921, Page 572, but that he should have been classified and rated under Subdivision (f) of said section and chapter, as suffering permanent partial disability.”
Subdivision (d) referred to reads, in part (page 575, Laws of 1921):
“A workman, in order to be entitled to compensation for hernia, must prove (1) that the hernia did not exist prior to the date of the alleged accident, and (2) that it was immediately preceded by an accident arising out of and in the course of employment. A workman, after establishing the right to compensation for hernia, as above provided, when operated upon*535 shall be entitled to receive from the Industrial Accident Fund, under the provisions of Subdivision (d) of this section, payment for temporary total disability for a period of 42 days. If such workman refuses forthwith to submit to an operation, neither he nor his beneficiaries shall be entitled to any benefits whatsoever under this act.”
The provision of subdivision (f) invoked by the claimant reads (page 575, Laws of 1921):
“Permanent partial disability means the loss of either one arm, one hand, one leg, one foot, loss of hearing in one or both ears, loss of one eye, one or more fingers, any dislocation where ligaments are severed, or any other injury known in surgery to be permanent partial disability * * .”
The case presented to and considered by the Commission, and the decision from which the plaintiff appealed, were based upon the claim for compensation on account of hernia alone. Plaintiff’s right to compensation, as awarded, was corroborated by the statutory proof required by the Workmen’s Compensation Act. He made his own case before the Commission. He appealed to the Circuit Court from the award made in that case. However, the cause of action tried in the Circuit Court was much more inclusive. As stated in plaintiff’s brief, the case was tried in the Circuit Court on the basis that the claimant was entitled to compensation for injuries “in addition to the award for hernia.”
It should be remembered that the Circuit Court is not a court of original jurisdiction in the matter of claims arising under the Workmen’s Compensation Law, but that it exercises appellate jurisdiction alone. The appeal was prosecuted in the Circuit Court and that court made its findings upon the theory, not
“a very vicious, aggravated and incurable femoral hernia,* * and complications consisting of leakage of the heart, abscess, and enlargement of and breaking down of the tissue of glands in permeal [sic] region, and general undermining of constitution and health, permanently incapacitating plaintiff from performing hard, if any, manual labor.”
From the record before us, it plainly appears that one cause for compensation was presented to the Commission; an additional and much more serious claim was tried in the Circuit Court.
It is true that this court has decided that appeals of this character are heard de novo: Miller v. State Industrial Accident Commission, 84 Or. 507, 511 (159 Pac. 1150, 165 Pac. 576); Raney v. State Industrial Accident Commission, 85 Or. 199 (166 Pac. 523). But this does not mean that another or an additional cause for compensation shall be tried in the Circuit Court. The cause of action tried in the Circuit Court must be the cause for compensation heard before the Commission.
The hearing of plaintiff’s claim for compensation by the Commission was informal. His application for compensation was the foundation for the award which resulted from the hearing. The award in the full sum provided by statute for hernia was a proper sequence to the application filed by the plaintiff and is supported by facts stated in that application and the sustaining proof. The Commission acted upon the matter properly before it, hence, it did not err in making its award.
Dissenting Opinion
Dissenting. — I agree in the questions of law as announced by Mr. Justice Brown, but cannot concur in the application in this case. I therefore dissent.