Roxana Petroleum Corp. v. Hornberger

CULLISON, J. This is an original proceeding before the Supreme Court to review an award made by the State Industrial Commission on May 17, 1930, in favor of respondent Peter A. I-Iornberger. The record discloses that respondent was in the employ of petitioner, and while so employed, on September 14, 1927, he suffered an accidental injury resulting in fracture of the left arm. He was under medical attention for considerable time, and on February 27, 1929, a hearing was held on said claim before Commissioner L. B. Kyle in pursuance to notice theretofore given, and as a result of said hearing the State Industrial Commission made an award in said cause on March 4, 1929. All parties were, present at the hearing, including respondent and his attorney, and the Commission made the following findings: “Now, on this 4th day of March, 1929, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to hearing held at Enid, Okla., on February 27, 1929, before Commissioner L. B. Kyle to determine liability and extent of disability, at which hearing claimant appears in person and by his attorney, C. B. Trice, respondent and insurance carrier being represented by C. B. Pierce. * * * “Finding No. 3. “That, arising out of and in the course of his employment, claimant on September 14, 1927, sustained an accidental personal injury which resulted in the permanent loss of 33 1-3 per cent, of the use of claimant’s left arm. “Finding No. 4. “That the average wage of claimant at the time of his injury was $125 per month. “The Commission is of the opinion, on consideration of the foregoing facts, that claimant is entitled to compensation at the rate of $18 per week for a period of 83 w'eeks and 2 days. “It is therefore ordered: That within ten days from this date respondent, Roxana Petroleum Corporation, or its insurance carrier, Aetna Life Insurance Company, pay to Peter A. Hornberger the sum of $1,500, same being 83 weeks and 2 days compensation at the rate of $18 per week, less any sum or sums heretofore paid as compensation in this case. * * *” In accordance with the above award, respondent was paid the amount thereof and signed a receipt therefor. The record next discloses that notice was given to all parties in said cause that a hearing would be held at Enid, Okla., on April 17, 1930, more than one year after the former hearing, to determine the extent of temporary total disability, and at said hearing all parties appeared before the Commissioner and the following proceedings were had: “By Judge Doyle: You have a petition to reopen the case? By Mr. Trice: Only in form of a letter — I am willing- to dictate the motion into the record now. By Judge Doyle: Go ahead. By Mr. Pierce: As I understand, he contends that the Commission was in error in making his award of March 4, 1929, and that he now seeks to have this case reopened to correct that award. By Judge Doyle: Well, I think he can. It is up to you gentlemen; I understand the Supreme Court passed on the matter; I have the decision. By Judge Doyle: Go ahead and offer your proof. By Mr. Trice : (Q.) State your name? By Mr. Pierce: To which the respondent and insurance carrier object and object to the introduction of any evidence for the reason that there was no motion or *259 application on tlie part of any person in the files and records of this case which authorizes or gives jurisdiction to this Commission to reopen this cause, under any grounds, or upon any reason authorized by the statute. By Mr. Trice: "VVe sent the Commission a letter stating our case and asked the Commission to indicate whether or not a formal motion would he required; to that last letter we have no reply; we here and now move the court to reopen the case and reinstate it, and grant the relief prayed for. By Judge Doyle: State your reason. By Mr. Trice: For the reason that the formal award only allowed Mr. Hornberger compensation for permanent injury, the award was based on 33 1-3 per cent, for 85 weeks and two days; I believe same to be 83 weeks and two days, at the rate of $18 a week, on that basis, the Aetna Life Insurance Company to pay $1,500, less any sum or sums heretofore paid as compensation in this case. Now, your honor please, the evidence shows he had been receiving $18 a week at the time he was discharged -by the physician and went back to the employer, — an amount was deducted out of this $1,500, which of course leaves him no compensation for the temporary permanent disability. By Judge Doyle: The disability extends further than this record — how much temporary total disability you are claiming? By Mr. Trice: ' The difference. By Judge Doyle:. How long was the total disability? By Mr. Hornberger: I don’t remember. By Mr. Pierce: Objection. By Judge Doyle: The objection will be overruled. Offer your proof. By Mr. Pierce: We demur to the sufficient,'.; of claimant’s motion to reopen, which has been dictated into the record, for the reason that the same does not state facts which would authorize this Commission to reopen under the provision of section 7290. By Judge Doyle: The demurrer will be overruled. Proceed. By Mr. Pierce: Exception.” Thereafter attorney for respondent herein introduced his evidence in support of respondent’s contention for additional compensation, and at the close of said testimony, attorney for the petitioner made the following motion: “We move to deny the motion for rehearing for the reason that no grounds have been shown to justify the Commission to reopen the case’’ —which said motion was overruled and excepted to. The record also discloses the following motion to have been filed before the Commission (omitting the caption) : “Motion. “And now on this 17th day of April, 1930, at the close of all the evidence in this caúse, comes the claimant, Peter A. Hornberger. and prays your honorable State Industrial Commission for judgment, that he have and recover of and from respondent. Roxana Pe-tro’cum Corporation, or its insurance carrier, Aetna Life Insurance Company, the sum of $864, same being 48 weeks compensation at the rate of $18 per week, for his temporary total disability, as provided for by ■ law, and which was ' by order of said Commission wrongfully deducted from said claimant’s award in the sum of $1,500, which is 83 weeks and 2 days compensation at the rate of $18 per week, for permanent partial disability of 33 1-3 per cent, of claimant’s left arm growing out of said injury, and he will ever pray. “Peter A. Hornberger, Claimant, “by B. C. Trice, His Attorney.” And thereafter on the 17th day of May, 1930, the Commission rendered an award in pursuance of the hearing held on April 17, 1930, which said award contains the following findings (B. 85) : “Finding No. 4. “That heretofore on the 4th day of March, 1929, the Commission made and entered an order allowing the claimant 33 1-3 per cent, permanent partial loss of the use of the left arm, or 83 weeks and 2 days compensation at the rate of $18 per week, in the sum of $1,500, which has heretofore been paid, but the Commission at that time failed to allow the claimant for his temporary total disability of 47 weeks and four days, as hereinbefore set out. “Upon consideration of the foregoing facts, the Commission is of the opinion: That said claimant is entitled to compensation in the sum of $858 for temporary total disability computed from September 14, 1927, to January 31, 1928, and from May 14, 1928, to December 1, 1928, or a total of 47 weeks and four days compensation at the rate of $18 per week. * * *” And from said award of the Commission the petitioners prosecute this appeal. The petitioners set out the following specifications of error which we will consider in discussing this case, namely: “That the Industrial Commission was wholly without jurisdiction to make said order and aw ard, and that said order is contrary to law.” This raises the question of whether or not the Commission had authority and jurisdiction to reopen said cause, hold a hearing thereon, and render an award on the merits as the Commission did on May 17, 1930. In the first place, the record discloses, as quoted above, that there was no motion or application on file requesting a hearing in said cause because of a change in conditions of respondent herein, and according to the record, no motion was dictated into the record showing any change of condition as required by section 7296, C. O. S. 1921. The question presented to the Commission *260 at the time of the hearing was that respondent received no compensation for his temporary total disability. At the first hearing testimony was presented to the Commission and the award dated March 4, 1929, rendered thereon. Under the terms of said award, respondent was awarded compensation for S3 weeks and 2 days, at $18 per week for a total sum of $1,500, which said amount was paid by petitioners as evidenced by their receipt dated March 8, 1929, and approved by the Commission on March 13, 1929. The record discloses that the award of March 4. 1929, was rendered after the hearing “before Commissioner L. B. Kyle to determine liability and extent of disability,” at which hearing all parties were present. Said award also contains the following order : “It is therefore ordered that within ten (10) days from this date respondent, Roxana Petroleum Corporation, or its insurance carrier, Aetna Life Insurance Company, pay to Peter A. Hornberger, the sum of $1,500, same being 83 weeks and 2,days compensation at the rate of $18 per week, less any sum or sums heretofore paid as compensation in this case.” We observe that the purpose for which the hearing was held on March 4, 1929, was to determine the liability in said cause and the extent of disability to the claimant. We also observe that the order rendered on said date, after directing the payment of a certain amount to Hornberger for his injury herein, specifically directs that said amount be paid, less any sum or sums heretofore paid as compensation in this case. The compensation directed to be deducted represents payments made to Hornberger during the time of his temporary total' disability and is the same and identical compensation for which respondent herein requested the hearing held' on April 17, 1930, and for -which an award was made, dated May 17, 1930, awarding-respondent $858, temporary total disability. Respondent filed no motion before the Commission requesting- a rehearing on said award of March 4, 1929, neither did he institute proceedings before the Supreme Court to review said award in an original proceeding before said court If respondent was injured by said award of the Commission, his remedy was to either make an application to the State Industrial Commission for a rehearing by said Commission or to institute proceedings before the Supreme Court to review the award. These are the rights given to respondent by the law, and he, and his representative, should follow the same in protecting the interests of respondent should they feel aggrieved as a result of said award of the Commission. But no such proceedings were instituted either before the Commission or the Supreme Court until more than one year after the rendering of the award of March % 1929. Then petitioner requests a hearing to determine the amount of temporary total disability due. There was no motion filed setting out the statutory grounds of “change of condition,” but the record discloses that at the conclusion of the hearing the respondent filed a motion setting out the amount of compensation claimed remaining due. Said motion dqes not set out that there is any change of condition, but does raise a question as to whether or not the first award entered by the Commission was correct as to the computation of compensation. AVith the record as outlined above, the Commission heard the evidence and issued an order, dated May 17, 1930, that the petitioner herein pay to respondent $85S for temporary total disability. The sole question is: “Did the Commission have jurisdiction to make the award of May 17, 1930?” In consideration of this question it -will be necessary to consider the statutory authorities under which said award was made and the terms and conditions of our Workmen’s Compensation Law. Section 7296, C. O. S. 1921, provides: “Review of Awards. Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the Commission may at any time review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded. subject to the maximum or minimum provided in this act, and shall state its conclusions of fact and rulings of law, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any money already paid.” Section 7297, C. O. S. 1921, provides, in part: “Appeal to the Supreme Court — Requirements. The award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless within 30 days after a copy of such award or decision has been sent by said Commission to the parties affected, an action is commenced in the Supreme Court of the state to review such award or decision. * * Section 7325, C. O .S. 1921, as amended, by Laws 1923, ch. 61, sec. 13, provides: “Amendment of Orders — Continuing Jurisdiction. The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, *261 make such modifications or changes witli respect to former findings or orders relating thereto, as in its opinion may be just, including the right to require physical examination as provided for in section 9 of article 2, .of this act (7293), anil subject to the same penalties for refusal. * * *” Section 7318, C. O. S. 1921, provides, in part: “Commission to Adopt Rules: The Commission shall adopt reasonable rules, not inconsistent with this act, regulating and providing for: * * * (8) carrying into effect the provisions of this act.” The four sections just outlined above are the sections to be considered in determining what rights the respondent had in respect to the award in question herein. In the case of Ward v. Beatrice Creamery Co., 117 Okla. 31, 245 Pac. 570, the court had under consideration the interpretation of sections 7297 and 7325, C. O. S 1921, and the court construed said sections as follows: “It is a canon of construction of statutes to give force and effect to each and every section of an act of the Legislature, and we are clearly of the opinion that, to give effect to both sections 7297 and 7325, section 7297 must govern in fixing the time of the right to appeal, and. as heretofore said, that the decision of the Commission, under both sections, became final and conclusive in this case upon the failure of the plaintiff in error to commence his action to review the first decision of the Commission within 30 days after the same was rendered. Tidal Refining Co. v. Tivis et al., 91 Okla. 189, 217 Pac. 163, sustains the above conclusion.” In the case of Tulsa Street Railway Company v. State Industrial Commission et al., 105 Okla. 265, 232 Pac. 418, the court lays down the following rule in regard to reviewing awards and as to when said award becomes final: “Where the State Industrial Commission has held a hearing and made an award of compensation for accidental injury, from which no proceedings to review have been brought to this court, and no application for rehearing has been filed with the Commission within the time or upon any of the grounds prescribed by the rules promulgated by the Commission, such award is final. Thereafter the jurisdiction of the Commission to review such award is limited by the provisions of Comp. St. 1921, section 7296, and attaches only .where there has been a change in conditions subsequent to the award.” In the case of Bedford-Carthage Stone Co. et al. v. Industrial Commission of Oklahoma et al., 119 Okla. 231, 249 Pac. 706, this court had before it the proposition of Iwhether or not an award for compensation for accidental injury is final where no appeal is made from said award and no rehearing requested before the Commission. We quote the following from said opinion: “It was held in Tidal Refining Co. v. Tivis, 91 Okla. 189, 217 Pac. 163, that a decision of this court declaring the law to be different from that applied by the Commission, in making an award, rendered subsequent to such award, did not constitute such a change in conditions as contemplated by section 7296. It is contended by claimant, however. that by section 7325, as amended by section 13, c. 61, Session Laws 1923, a continuing power and jurisdiction is conferred upon the Commission in all cases to change or modify its former orders and awards. The amended section reads: “ ‘7325. The power and jurisdiction of the Commission over each case shall be continuing and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto, if, in its opinion, it may be justified, including the right to require physical examinations as provided for in section 7293, and subject to the same penalties for refusal; provided, * * *’> (provisions omitted). The amendment consists of the proviso. Except for the proviso the original section is unchanged. “If there were no other sections touching upon the question of jurisdiction of the Commission, the contention might be sustained, but such interpretation would make nugatory section 7297, which provides that the award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction between the parties unless within 30 days after a copy of such'award or decision has been sent to the parties an action is commenced in the Supreme Court of the state to review the award or decision. When sections 7235, 7296, 7297, and 7325 are considered together, it must be held, we think, that it was the legislative intent that the Commission have a continuing power and jurisdiction to review its award on the ground of a change in conditions only, and, except for a change in conditions, the award is final and conclusive upon all questions within its jurisdiction unless suit is commenced in this court within 30 days to review the award or decisions.” In the case of Liddell v. State Industrial Commission et al., 126 Okla. 235, 259 Pac. 265, the court had under consideration the sections of our statute set out above, and in said opinion the court discussed said sections as follows: “It appears to be well settled that the Industrial Commission of the state of Oklahoma has inherent power to change, modify, or vacate its order, and that its jurisdiction is continuing; and it may make such orders as may meet the ends of justice, *262 upon its own motion or upon the motion of an interested party, provided there is a change in condition or that the interested party makes application within the time prescribed by the rules of the Industrial Commission. Wilkerson v Devonian Oil Co., 114 Okla. 84, 242 Pac. 531; Bedford-Carthage Stone Co. v. State Industrial Commission, 119 Okla. 231, 249 Pac. 706; Herrod v. Eddie Mill & Elevator Co., 121 Okla. 260, 249 Pac. 395. “Under section 7296, C. O. S. 1921, the Commission may at any time review an award and make such an award ending, diminishing, or increasing the compensation previously awarded, upon its motion or upon tbe application of an interested jarty, on the grounds of a change in condition. “Section 7297, C. O. S. 1921, as amended by the Session Laws 1923, c. 61, section 8, provides (hat an award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction, unless, within 30 days after a copy of said award or decision has been sent by the Commission to the parties affected, an action is commenced in the Supreme Court to review the same. “Section 7325, C. O. S. 1921, as amended by the Session Laws of 1923, c. 61, section 13, provides that the power and jurisdiction of the Commission shall be continuing, and it may make such modifications and changes with respect to its former orders as in its opinion may be justified. “Section 7318, C. O. S. 1921, provides that the Commission shall adopt, reasonable rules, not inconsistent with the Compensation Act, for the purpose of carrying into effect the provisions of the Compensation Act, and under this provision the Industrial Commission has adopted certain rules, among which is rule 30, which provides that any party aggrieved by an award may, at any time within 10 days from the date of the award, apply for a rehearing on the grounds that the Commission acted without authority or in excess of its powers, and that the evidence does not justify' the finding of the Commission, etc. “In construing these sections together with the rule above referred to, this court in'the case of Bedford-Carthage Stone Co. v. State Industrial Commission, supra, held that where an award wag not questioned by an application for a rehearing within 10 days as provided by the rules, nor within 30 days by an action in the Supreme Court, that such award is final and conclusive upon all questions within the jurisdiction of the Industrial Commission.” In the case of K. D. Oil Co. et al. v. Datel et al., 145 Okla. 264, 292 Pac. 564, the court lays down the rule relative to reopening a case by the Commission, syllabus No. 2 of said cause being as follows: “In order to reopen a ease and award fur- . ther compensation upon account of change of condition, the claimant must establish before the Industrial Commission that there has in fact been a change of condition since the original award was made, and, further, that same was due to the original injury.” And also in the body of said opinion, the court quotes with approval from the Bed-ford-Carthage Stone Co. Case, on its interpretation of the sections of our statute as above set out, wherein the court says: “ It was held in Tidal Refining Co. v. Tivis, 91 Okla. 189, 217 Pac. 163, that a decision of this court declaring the law to be different from that applied by the Commission, in making an award, rendered subsequent to such award, did not constitute such a change in conditions as contemplated by section 7296. It is contended by claimant, however, that by section 7325, as amended by section 13, c. 61, Session Law's 1923, a continuing power and jurisdiction is conferred upon the Commission in all cases to change or modify its former orders and awards.’ “After setting out section 7325, and commenting upon the same in connection with section 7297, the court says: “ ‘When sections 7296, 7297, and 7325 are considered together it must be held, we think, that it was the legislative intent that the Commission have a continuing power and jurisdiction to review' its award on the ground of a change in conditions only, and, except for a change in conditions, the award is final and conclusive upon all questions within its jurisdiction unless suit is commenced in this court within 30 days to review the award or decisions.’ “In the case of Vietti v. Crowe Coal Company et al., 133 Okla. 81, 271 Pac. 160, this court said; “ ‘Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Industrial Commission may at any time review any award, and, upon such review, may make an award ending, diminishing, or increasing the compensation previously awarded. By the term “change in condition’' is meant a change in condition occurring after the previous award of the Commission’.” In the case of dentine et al. v. Calloway et al., 147 Okla. 137, 295 Pac. 608, this court laid down a rule as to the requirements before the case can be reopened by the Commission under section 7296: “The previous decisions by this court and the above analysis of section 7296. supra, disclose that three factors must appear, in the inception, before the Commission is authorized to reopen a case under section 7296, supra, namely: (1) It must appear that the Commission has ‘previously awarded the claimant, compensation.’ This is a necessary condition precedent. (2) That in fact *263 there lias been a change of condition. (3) That the change of condition was due to the original injury.” In the Ward Case the court held that in construing sections 7297 and 7325, section 7297 must govern in appeals, and that decisions of the Commission under both sections become final and conclusive when no proceeding to review the same is instituted within 30 days. In the Tulsa Street Railway Case the court held when no application for a rehearing has been filed with the Commission within the time and upon the grounds prescribed by the rules promulgated by the Commission, such award is final thereafter; the jurisdiction of the Commission to review such award is limited to section 7296, C. O. S. 1921, and attaches only when there has been a change in condition subsequent to the award. In the Bedford-Garthnge Stone Company Case, and later in the K. I>. Oil Company Case, this court construed sections 7296, 7297, and 7325 together and held that the Commission had continuing power and jurisdiction to review its awards on the grounds of change of condition only, and that change of condition must, occur after the original award was made. In the Liddell Case this court rendered its interpretation of sections 7296, 7297. 7325, and 7318, and held that these four sections, construed together in connection with the former decisions of this court, provide that where an award was not questioned by an application for rehearing before the Commission in accordance with the rules of said Commission nor with an action to review in the Supreme Court, such award is final and conclusive upon all questions within the jurisdiction of the Commission. Also see Olentine v. Calloway, 147 Okla. 137, 295 Pac. 608. .Under the law as just stated, when the Commission held the hearing and rendered its award on March 4, 1929, and ordered compensation paid to respondent herein, said award became final and binding upon all parties when no application for rehearing was filed before the Commission in accordance with the rules of said Commission and no appeal was filed before the Supreme Court to review the said award by the Supreme Court. After said award became final and binding the Commission retained jurisdiction to make further awards in said cause only where a change of condition was shown to exist after the rendering of the previous award, and unless the respondent herein could show that there had developed a change of condition since the rendering of the award on March 4, 1929, the Commission would have no jurisdiction to reopen said cause and render further compensation to respondent herein In accordance with the above authority and the construction placed upon sections 7296, 7297, and 7325, and 7318, we are forced to hold- that the Commission had no jurisdiction to reopen this cause and render the award made herein on May 17, 1930, in the amount of $858. Said item was for temporary total disability, and in the award of the Commission of March 4, 1929, said Commission found and ordered that the claimant receive $1,500 compensation, less any sums heretofore paid as compensation in this case. The amount ordered deducted by the Commission in the first hearing is the identical item for which compensation is awarded in tlie latter hearing. Said matter was before the Commission, and in accordance with the authorities of this court, was final and binding, since no appeal had been taken therefrom. The award of the State Industrial Commission is reversed, with directions that the same be dismissed. RILEY, HEFNER, SWINDALL, ANDREWS, and McNEILL, JJ„ concur. LESTER, C. J., CLARK, Y. C. J., and KORNE-GAY, J., dissent.