*1 564 argued 4,
Petition for review allowed November
November
re-argued July
30, 1970,
7,
15,
affirmed December
Respondent,
v. FIREMAN’S FUND
SAHNOW,
Petitioners
INSURANCE COMPANY
et
al,
HOWELL, J. compensation involving a workmen’s
This is compensability of a claim for death the issue of heart attack. from a benefits employed by decedent had been Beav-
Plaintiff’s August 14, 1967, and on he died of Parts, erton Auto rupture left ventricle the heart. Plaintiff’s by compensation denied defendant Fire- was claim for employer’s Company, insur- Insurance Fund man’s Compensation company. Board The ance Workmen’s plaintiff’s officer for a claim a referred hearing plaintiff rested her casé At the determination. ,566 offering copy
after in evidence a certified of the death report Rogers, certificate and a written Dr. a heart specialist treating phy- who had been the deceased’s pathologist cardiologist sician. A and a called de- fendants testified to the effect that the deceased’s work activity materially contributing had not been a factor in his death. rejected plaintiff’s claim for plaintiff requested a review the Compensation
Workmen’s Board. Plaintiff moved the Board remand the case to the officer for taking testimony. of additional The motion was supported by plaintiff’s an of one of affidavit attor- neys challenging path- the conclusion of defendants’ ologist cardiologist ground that the con- assumption on the erroneous clusion was based Rogers enzyme performed Dr. had serum studies and electrocardiograms, and that the results thereof were alleged Rogers, normal. The affidavit further that Dr. *3 testify, enzyme if allowed to would state that studies electrocardiograms per- had not been and that made, day prior formed on the of the accident differed from electrocardiograms. Compensation Board
The Workmen’s directed hearing to ascertain whether the officer the absence enzyme opinions alter studies would the of the cardiologist. pathologist The doctors advised and hearing of such studies would officer absence opinion. The Board then affirmed the not alter their rejected hearing plaintiff’s officer and of the decision claim. appealed the circuit court. Plaintiff
Plaintiff Rogers requested court produced to hear Dr. objected ground testimony. on the Defendants that his
567 testimony Bogers’ time obtainable had been Dr. hearing. ‹ Bogers’ to hear Dr. decided The court testimony he could remand the on that since the basis by hearing testimony offi taken case to have the Bogers by listening to Dr. save time he would cer, himself. testimony, Bogers’ hearing and based Dr.
After testimony, by supplemented as on the record hearing of the decision circuit court affirmed Compensation by the affirmed Workmen’s as officer, plaintiff not entitled to was and found that Board, compensation. Appeals. appealed to the Court
Plaintiff then (1970), App P2d 378 164, held, court Or That testimony Bogers’ had been available that because Dr. hearing hearing officer, at the time permitting the doctor court erred the circuit remanding testify case to the instead 656.298(6). provided The Court for OBS as officer, Bogers’ Dr. testi- Appeals because concluded that improperly mony it could not be admitted had been appeal. to the The ease was remanded considered to the remand it instructions court with circuit testimony Bogers’ any to take Dr. question explore med- needed to evidence other causation. ical agree with
We ‹ ORS 656.298(6) circuit review shall “The court be states: jury, entire record iorwarded a judge, without may judge the case officer for remand board. necessary taking, or other correction action. evidence further concerning judge hear additional evidence However, *4 hearing. disability the time of the not obtainable at was modify supplement reverse, may affirm, or judge the order The appealed disposition judge of the case as the from, and make appropriate.” to be determines judge Rogers’ testimony, in trial erred Dr. judge may trial while the hear evi- because additional concerning disability, dence is additional evidence restricted to evidence “not at the time of obtainable hearing.” 656.298(6). ORS question now turn to the of this
We
whether
on its
or
merits,
court should decide
whether
Appeals
of
of
we should affirm the action
the Court
remanding
A
in
the case back to the
officers.
depend
this
decision on
merits would
on whether
duty
de
court has
review novo workmen’s com-
coming
Ap-
pensation
cases
to us from
of
Court
disagreement
peals.
of
The members
this court are in
concerning
scope
compen-
of
our
review in workmen’s
majority of the
now
cases; however, a
court is
sation
opinion
not
that our review should
be de novo
arriving
of law. In
limited
errors
but should be
accepts
majority
now
reason-
conclusion,
this
dissenting opinion
ing
in
his
Surratt
J.,
Denecke,
(1971).
Bros.,
65,
259 Or
record.”
*5
majority
Justice Denecke
and a
concluded,
now
agrees,
that the
of review in this court should
particularly
not he de novo,
for the reason that de
novo
on
trials
the record are allowed before the Board,
Appeals.
the circuit
of
Court
Appeals
We believe that
the Court
had the
discretion to decide
the case
the merits based on
hearing
the record made before the
which
officer,
testimony
Rogers
would exclude the
of Dr.
taken in
Beagle
the circuit court.
v. Rudie Wilhelm Warehouse
Company,
App
2 Or
533,
on its merits based record made before the hearing it pro- officer, or could have followed the remand the cedure taken and case offi- testimony. any for further do not cer We find basis holding Appeals abused its dis- remanding cretion in the ease to the officer. Affirmed. concurring opinion J.,
TONGUE, majority opinion I result of concur agree because I had discre- tion to remand for the officer, majority. my posi- reasons stated It has been tion in that for these reasons the case, however, this *6 granted petition improperly and should was have been denied. dissenting.
MoALLISTER, J., relatively simple compensa- This is a workmen’s by focusing Appeals, of tion case in which the Court procedural error in the its on a harmless attention only im- rule issue of circuit failed to erroneously parties portance and remanded unnecessary proceedings. This court for further ease finally Appeals of instead of now affirms the Court disposing do. I we can should of the case as believe per- agree erred when it circuit court
I testify remanding Rogers to instead mitted Dr. taking for the of the addi- to deciding testimony. to the case, remand tional Before Appeals have determined should however, prejudicial error was circuit court’s whether Rog- it was not. Dr. party. am that I convinced either request, plaintiff’s testimony was heard ers’ complained state the record. about the has not she argued testimony Although that have defendants they have not con- all, received at not have been should they it was heard harmed because were tended
571 the circuit court instead of officer. Rogers’ When the Court of decided that Dr. testimony ought part be the record it could have, prejudice party, without to either decided the ease on ordering entire record before it instead of the ease taking testimony remanded for the of the same affirming officer. And, instead remand this court should have decided order, the case put protracted on its merits and an end to this con- troversy. party
It is true that neither asked this court for a determination on the merits. Nevertheless, the case ripe for a final I decision and believe this court has authority authority it, decide an which neither litigant by procedural can frustrate devices. right ap-
It is well established that both the peal right and the extent of that are determined applicable Logsdon statutes. v. State and Dell, 234 (1963); Or P2d 66, 380 111 70, Inland Nav. Co. v. (1954); et al, Chambers 202 Or 274 P2d 339, 350, Commission, Cohn v. State Tax 92, 118 Or P 95, 245 (1926). In Inland Nav. Co. v. Chambers it was power held that circuit court’s review in tax *7 by assessment cases was limited to statute certain specified applicable issues. The statute both the issues dispositions court was to consider and the circuit the depending upon findings. it could make its which See at 349. 202 Or compensation statutes,
In the workmen’s
evidently
legislature
pro-
hand, the
intended to
other
possible.
as
as broad
Circuit
for a review
vide
court
(6):
in ORS 656.298
is described
review
by
judge,
shall
court review
be
circuit
a
“The
jury,
by
on the entire record forwarded
without a
may
judge
remand the
The
case to
the board.
hearing
taking,
officer for further evidence
cor-
*
**
necessary
judge
or other
rection
action.
The
modify
supplement
or
affirm, reverse,
appealed
disposition
order
and make
from,
judge
appropriate.”
the case as the
to
determines
be
appeal
judgment
The
from
of the
circuit
is
court
QRS
provided
says
656.301,
for in
which
appeal
of review on
is
be the
as that
same
Coday
Tug
Barge,
circuit court. In
v. Willamette
&
(1968),
party
The entirely peal with the rest of the consistent statu- require do not tory statutes scheme. QRS any sense at level. pleadings the usual 656.283 in ap- (2). circuit (2); In the notice of 656.295 only “a brief statement of the relief peal include need the reasons relief should be requested (3) (d). points No statement of granted.” 656.298 ORS required. hearing At the assignments error are or evidence is taken, most rules where level, officer procedure relaxed; are of evidence any “conduct is authorized justice.” substantial will achieve ORS manner (6). the board is based on the A 656.283 like officer; the cir- made record
573 modify may or “affirm, reverse, cuit the board make supplement of the officer and the order disposition it determines to be of the case as such (6). appropriate.” 656.295 OKS legislature intended that it I think clear that large appropriate determi- at for each case would be every stage proceedings. review It nation of the agency dispose reviewing and court to directed each appropriate on manner based in an before it. entire record inconsistency apparent between this is an
There provisions interpretation of the review com- (5), provides: pensation 2.520 which statutes OKS * * “* Supreme Court is limited review petition errors asserted in rehear- to those ing Appeals, Supreme unless in the Court plain apparent take notice of error shall Court of the record.” the face (5) is 2.520 inconsistent with
To the extent OKS compensation provisions statutes as interpret I think the them, I latter should be would compensation given statutes deal effect. The with procedural unique particular with a class of cases general they should control over the more structure; my (5). opinion provisions It is 2.520 that re- OKS petition points gardless in the raised for re- of the power Appeals, have we compensation merits cases when- to determine appropriate. a determination deem ever we majority scope that we limit our holds adopting reasoning cases, in these of review opinion dissenting Bros., in Surratt v. Gunderson 259 According (1971). to that reason-, P2d 410 65,Or liberty fix the of our ing, review of “at arewe workmen’s cases” because no statute *9 specifically prescribes scope tbe of our of review of Appeals. decisions (5) tbe Court of OES 2.520 provides:
the review, “After the Supreme further Court Supreme by proceedings rule Court allows a provide. shall be had as petition * [*] *” majority opinion implies The gives that this statute power prescribe scope us the to the of our review. I do legislature. not believe it was so intended “proceedings” to which the statute refers I take to be traditionally those over which we have exer- rule-making power cised filing matters as the —such preparation of documents this with court, of briefs, argument. legislature and the conduct of oral If the grant power had intended to determine rule scope surely plainer review, the language. it would have chosen provision
In the absence of clear for such power, govern- should look to the we relevant statutes scope ing appeals particu- to find the of our in review lar cases. pointed reasoning that
It should be out majority applies adopted by to other cases well as proceedings. example, compensation For as OES provides: (3) 19.125 appeal
“Upon in an from a decree a suit in upon equity, shall be tried anew the cause record.” jurisdiction equity is case within
When an Appeals, appeal strictly from the decree, Court According majority’s speaking, court. is reasoning, of our it follow review would through equity to us come cases which this could be determined govern (3) not our review. 19.125 would OES legislature pre- opinion my that until It is workmen’s otherwise, scribes properly record, de novo on the cases in this court Aj)peals. We should in the Court as is the review on the record of this case decided the merits have Eogers’ testimony. including I dissent Dr. us, majority’s disposition of the which case, from sending Appeals’ remand order affirms reception for the back to the case part of the which has been a same evidence this one. both that court and record before J., joins in this dissent. Holman, *10 concurring part; dissenting in BEYSON, J., part. majority decision this court
I concur with novo workmen’s not hear de should part the de- from that however, cases. I dissent, this case which remands cision of officer.