208 P. 746 | Or. | 1922
We are of the opinion that an appeal does not lie from the action of the commission in designating a physician and hospital for an injured workman, and that it was erroneous to submit to the jury the question raised on the trial. .From special proceedings of this character appeal will not lie, unless granted by the express terms of the statute or by necessary implication: Town of Lafayette v. Clark, 9 Or. 225; Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309); Fisk v. Henarie, 15 Or. 89 (13 Pac. 760); State v. Security Sav. Co., 28 Or. 410 (43 Pac. 160); Portland, v. Nottingham, 58 Or. 1 (112 Pac. 28).
We will now examine the Workmen’s Compensation Act to ascertain whether or not the present case is embraced within those decisions of the commission from which it was the intent of the legislature to grant an appeal. Section 6626, Or. L., sets forth what is therein termed a schedule, with clauses lettered from a to k, inclusive, specifying for what injuries the workman, or his family in case of his death, shall receive compensation, the amount of such compensation, and the length of time for which it shall continue. It is the very substance and heart of the act, and is the only “schedule” in the statute. Then follows Section 6628 in regard to first aid to injured workmen, under which in connection with Section 6644, a part of the act passed in 1917, the plaintiff was placed in Mercy Hospital for treatment. Section 6637 defines the right of appeal. We quote that section in its entirety, italicizing the portions which in our opinion are important here:
“The commission shall have full power and authority to hear and determine all questions within its jurisdiction, but any beneficiary not satisfied with the*647 decision or findings of said commission, may, within thirty days after notice of the final action of such commission, appeal to the circuit court of the state of Oregon for the county in which such claimant resides. 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 registered mail on the commission. Within ten days after the receipt of such notice the commission shall file with the clerk of said court the record of proceedings before the commission, including a transcript of the evidence and all correspondence relating to the said matter, and the case thereafter shall be tried as other cases in said court; provided, that either party thereto may demand a jury trial upon any question of fact, in which case it shall be tried at a regular term in said court and shall have precedence over all other civil cases.
“Upon such appeal the court shall determine whether the commission has justly considered all the facts concerning the injury, whether it has exceeded the power of this act, whether it has misconstrued the laws and facts applicable in the case decided, and whether it has made proper award to the injured worhman, and if it shall determine that the said commission has acted within its powers and has correctly construed the law and facts, the decision of the commission shall be confirmed; otherwise it shall be reversed or- modified; providing, however, that in case of any trial of fact by a jury the court shall be bound by the decision of the jury as to the question of fact submitted to it. In case of a modification or reversal the circuit court shall refer the same back to the commission with an order directing it to fix the compensation in accordance with the findings made by the court; provided, that any such award shall be in accordance with the¡ schedule of compensation set forth in this act. The*648 costs of such proceedings, including the prevailing fee of $10, shall he taxed against the unsuccessful party. Appeal shall lie on the judgment of the circuit court, as in other civil cases. ,
“The attorney-general shall be the legal adviser of the commission. Upon request of the commission, the attorney-general or, under his direction, the prosecuting’ attorney of ' any county, shall institute or prosecute actions or proceedings for the enforcement of any provisions of this act or for the recovery of any money to the industrial accident fund, of any penalty herein provided for, when such actions or proceedings are within the county in which such prosecuting attorney was elected, and shall defend in like manner all suits, actions and proceedings brought against the commission or the members thereof in their official capacity.”
We are of. the opinion that it was the intent of the legislature to limit the right of appeal to decisions in respect to the right to secure compensation for injuries, the amount of such compensation, its duration, the beneficiaries to whom it should be paid, and the other kindred matters mentioned in the schedule. The words, “provided that any such award shall be in accordance with the schedule of compensation set forth in this act,” if they mean anything, confine the authority of the court to a judgment in respect to the matters mentioned in that schedule; and its power to act thereby becomes the measure of the right of appeal. We are not prepared to say that cases may not arise wherein an arbitrary act or decision of the commission on matters outside the purview of the schedule may be reached by some appropriate proceeding, but we do not believe that such matters can be reached by appeal. Neither do we believe that, it was the intent of the legislature to allow an injured workman, when dissatisfied with
The fund in the hands of the commission is trust money and the commission and the injured workman have the same object in view, namely, to secure the speediest possible recovery of the injured workman; for the sooner he is restored, the sooner he will cease to be a burden on the state. The commission is therefore interested in the selection of a competent physician and its discretion in that respect is not subject to review here. "While in this particular instance the plaintiff selected a competent surgeon, there would no doubt occur many instances where ignorant workmen, if allowed to select at will a surgeon to attend them, might fall into the clutches of unskilled quacks whose ministrations would prolong their disability and thereby inflict unnecessary suffering upon them and an increased financial burden upon the compensation fund. For these reasons the law has properly placed the selection of a physician upon the commission, and from the honest exercise of the discretion so given that body there is no appeal.
The judgment of the Circuit Court is reversed and the proceeding dismissed.
Reversed and Proceeding Dismissed.