Chebot v. State Industrial Accident Commission

McCOURT, J. On August 20, 1915, the’ State Industrial Accident Commission made a final award to plaintiff for an injury to his right eye, suffered by him on May 4, 1915, while he was employed by the Sheridan Lumber Company at Sheridan, Oregon. The award was made upon the basis of temporary total disability for one and one-third months, at the rate of $30 per month, and of permanent partial disability, consisting of ten per cent loss of function of one eye, to be compensated by monthly payments of $25 each for two and two-thirds months, or a total of $106.60. Pifty-four dollars and seventy-seven cents of this amount had been paid at the time the final award was made, and the balance of $51.83 was paid to plaintiff, and his receipt in full taken therefor on August 20, 1915. — 663 — Plaintiff accepted the award granted him, under protest. Soon, thereafter plaintiff left the State of Oregon, and did not return until early in the year 1921. In the interval the commission knew nothing of his whereabouts or the condition of his eyes. On April 19, 1921, plaintiff filed with the Industrial Accident Commission a formal application, entitled “Petition for Additional Compensation.” In his petition plaintiff represented that from about the 1st of December, 1915, until about the 24th day of April, 1919, plaintiff was unable to do any steady work, and had to make his living by accepting charity, which consisted largely of being shipped from place to place by employment agencies, some of the cities to which he was shipped being Miles City, Montana, Chicago, Illinois, Buffalo, Utica and New York City, New York, in which places he received assistance from the Salvation Army, Red Cross and other like charitable institutions; that in April, 1919, his right eye was removed at a charitable institution in New York City; that his left eye at the time of presenting his petition was so inflamed and weak, that plaintiff could stand no light upon it, and suffered continually; and that he is now incapacitated from performing any useful work or occupation, and fears that in a short time he will be totally blind, all as a direct and proximate result of the injuries sustained by him at Sheridan, Oregon, in May, 1915. In the prayer of his petition, plaintiff demanded that his case be reopened, and that he be paid for the loss of his right eye in a lump sum, which he computed to. be the sum of $850, less $50 paid him at the time of the original award in 1915, and also demanded that he be paid compensation as for a permanent total disability. — 664 — A hearing was had before the commission on plaintiff’s petition, and the same denied by the commission. Plaintiff appealed to the Circuit Court for Multnomah County, where a jury trial was had which resulted in a verdict wherein the jury found the disability of plaintiff substantially as set forth in his petition, and that the same was caused by the original injury, to his eye; also that plaintiff “is now permanently incapacitated from any work at any gainful occupation.” Since returning to Oregon plaintiff has been, and is now, an inmate of the County Poor Farm, and his case was one that strongly appealed to the jury. Moreover, the evidence offered by plaintiff fairly tended to prove that his present disability developed from the original injury to his eye. Judgment was entered by the court upon the above-mentioned verdict, in which judgment the decision of the State Industrial Accident Commission was reversed, and the commission was ordered and directed to fix the compensation of plaintiff, and therein award plaintiff the sum of $800 in a lump sum, and also to award plaintiff further compensation upon the basis óf a permanent total disability, or the sum of $30 per month. The commission has appealed from the judgment and directions of the Circuit Court. Before the matter came on for trial in the Circuit Court, the Attorney General, representing the commission, interposed a motion to dismiss the appeal from the decision of the commission, upon the ground that the commission had not since August 20, 1915, made any appealable decision relative to plaintiff’s Aiaim for compensation, and that therefore the time within which plaintiff was entitled to appeal had long — 665 — since expired. The court denied the motion, and that action is assigned as error. The plaintiff bases his claim to further participation in the industrial accident fund and to an increase of compensation over that originally allowed by the commission, upon the declaration of the statute that— “The power and jurisdiction of the commission shall be continuing and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as in its opinion may be justified.” (Subd. “e,” § 6632, Or. L.). and the following provision of the statute— “If aggravation, diminution or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated in any case, the commission may, upon the application of the beneficiary, or upon its own motion, re-adjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments.” Subd. “i,” § 6626, Or. L. The foregoing provisions are common to the compensation acts of all the states, except perhaps Wyoming and New Hampshire (Schneider’s Workmen’s Compensation Law (1922), § 552), and they express the judicial construction placed by the English courts upon a clause embodied in Schedule One of the English Act, authorizing a review of the original award and the allowance of increased compensation, when the circumstances of the workman have changed: Gibson v. Wishart, 30 Times L. R. 540 (1914); Tyne Tees Shipping Co. v. Whilock (1913), 3 K. B. (Eng.) 642, 109 L. T. R. 84 (1913); Cox v. Braithwaite (1912), 5 B. W. C. C. (Eng.) 648; Tynron v. Morgan (1909), 2 K B. (Eng.) 66; Griga v. The Harelda (1910), 3 B. W. C. C. (Eng.) 116; Hun — 666 — newell’s Case, 220 Mass. 351 (107 N. E. 934); notes, L. R. A. 1916A, 163; L. R. A. 1917D, 186. 1. An application for increased compensation on account of changed condition or increased disability is not the beginning of a new proceeding, but merely another step in the proceeding which is initiated when the workman files his original application for the adjustment of Ms claim: Indianapolis v. Morgan (Ind. App.), 129 N. E. 644; Choctaw Portland Cement Co. v. Lamb, 79 Okl. 109 (189 Pac. 750); Kriegbaum v. Buffalo, 182 App. Div. 448 (169 N. Y. Supp. 307); Fish v. Rutland R. Co., 189 App. Div. 352 (178 N. Y; Supp. 439); Metcalf v. Firth Carpet Co., 196 App. Div. 790 (188 N. Y. Supp. 448). The statute provides no limitation of time within which increased compensation shall be allowed upon account of aggravation of disability or within which application therefor shall be made, unless Section 6632, Or. L., contains such a limitation. That section reads: “(a). Where a workman is entitled to compensation under this act, he shall file with the commission his application for such compensation on blanks furnished by the commission.” “(c). If change of circumstances warrants an increase or re-arrangement of compensation, like application shall be made therefor. No increase or rearrangement shall be operative for any period prior to application therefor. “(d). No application shall be valid or claim thereunder enforceable in nonfatal cases unless such claim is filed within three months after the date upon which the injury occurred * * .” 2. The statute gives the commission general jurisdiction over the Industrial Accident Fund and over the employers and employees contributing thereto, and special jurisdiction over the particular case of an — 667 — injured workman when such workman filed with the commission his application for compensation. By-force of the statute, the jurisdiction thus acquired continues as long as that workman suffers disability, the proximate cause of which reasonably may be traced to the injury for which claim for compensation was originally made and compensation awarded thereon: Bethlehem Ship Building Corp. v. Industrial Acc. Com., 181 Cal. 500 (185 Pac. 179, 7 A. L. R. 1180). 3, 4. It has been suggested that the three months’ limitation contained in the statute, within which application mnst be filed, governs the right of a disabled workman to call into action the powers of the commission to grant increased compensation where increased disability has developed, or a change in the status of the workman calling for increased compensation has arisen. Such a construction, however, ignores the plain provisions of the statute which impose upon the commission a legal duty to regulate the compensation to be awarded the injured workman by the development of his disability or change in his family status; the exercise of that power by the commission and the discharge of that duty in the. very nature of things, arises in most instances, months and even years after the three months’ period following the occurrence of the injury has elapsed. But it is said that such a construction does not deprive the commission of power to act in proper cases, but merely deprives the injured workman of the right to require the exercise of that power; it is asserted in effect that after the expiration of the three months ’ period, award of compensation to the injured workman for disability subsequently developed is a matter of grace, and dependent upon the will of the commission. — 668 — The compensation act creates an industrial accident fund for the benefit of injured workmen, and when the right of a workman to participate therein is perfected, his pre-existing right to claim damages from his negligent employer is exting-uished: Section 6616, Or. L.; Jenkins v. Carman Mfg. Co., 79 Or. 451 (155 Pac. 705) ; Miller v. Industrial Acc. Com., 84 Or. 509 (159 Pac. 1150, 165 Pac. 576). The right thus created is a valuable one, and the legislature did not intend that the benefits accruing to workmen therefrom should be withheld or enjoyed at the caprice or will of the commission. It was the manifest purpose of the act that the compensation to which an injured workman is entitled should be adjusted from time to time as his disability as the result of injury arising out of, and in the course of his employment, should increase or diminish ; to that end, it is provided in the act that the commission shall have power to require a workman entitled to compensation under the act to submit himself to medical examination from time to time, upon penalty of suspension of monthly payments in ease of refusal: Section 6633, Or. L. The right of a disabled workman to increased compensation for aggravation of disability when he has applied therefor, as required by the statute, is of exactly the same dignity as his right to receive compensation in the first instance: the statute declares that the injured workman shall receive compensation, the amount of which shall be measured by the extent of the disability that develops at any time as a direct result of his injury, and makes it the duty of the commission to award compensation accordingly. The purpose of a formal application in such cases is, not to give jurisdiction, but to fix the time from which compensation at the new rate shall begin. — 669 — That purpose is made plain by reference to the following clauses of the statute: “The commission may * * re-adjust for future application the rate of compensation,” and “no increase or rearrangement shall be operative for any period prior to application therefor.” In the case of Choctaw Portland Cement Co. v. Lamb, supra, it was urged that because the claimant did not file his claim for increased compensation within a year after the injury occurred, his claim therefor was barred by the statute, which declares that no claim for compensation should be valid unless filed within one year after the date the injury occurred. The court said: “The respondent did file his claim for compensation within a year, but at the time it was filed it did not appear that he would lose the use of his arm. Having filed a claim within the time provided by the act we are of the opinion that under the continuing power and jurisdiction of the commission, * * his claim for the loss of his arm, growing out of the injury on which his first claim was based, was not barred. ’ ’ The duty of the commission to award compensation in case of aggravated disability traceable to the injury upon which compensation has, been allowed as the proximate cause thereof, is not discretionary, and contains no elements of discretion not associated with its duty to award compensation in the first instance. 5. The right of appeal does not depend upon whether the determination appealed from involves the exercise of discretion by the tribunal rendering the decision, but upon the statute creating the right to appeal, and if such right is not given by the stat — 670 — ute, it does not exist: Smith v. State Industrial Acc. Com., 104 Or. 640 (208 Pac. 746, 748). 6. The appeal section of the statute, in so far as it applies to the instant case, reads as follows: “The commission shall have full power and authority to hear and determine all questions within its jurisdiction, but any beneficiary not satisfied with the 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 * * .” Section 6637, Or. L., as amended, Chap. 311, Laws of 1921. One of the conditions which demanded the enactment of the Workmen’s Compensation Act, and to escape which that legislation was adopted, and a commission created for its administration, is described therein as follows: “ * * that in determining the reasonability of the employer on account of injuries sustained by his workmen, a great and unnecessary cost is now incurred in litigation, which cost is divided between the workmen, the employers and the taxpayers, who provide the public funds, without any corresponding benefit, to maintain courts and juries to determine the question of responsibility under the law as it now exists * * .” Section 6605, Or. L. The act was plainly intended to effect a withdrawal from interference by the courts of all questions relating to compensation to employees injured in hazardous employments, so far as that result is practicable or attainable, in view of the absolute right of the individual to invoke the power and jurisdiction of the courts to prevent rank injustice or the denial of substantial legal rights. — 671 — Influenced by tbe foregoing considerations, some of the members of this court, including tbe writer of this opinion, entertain tbe view that tbe term “final action,” as used in tbe appeal provision of tbe statute, means tbe final decision in a particular case, wherein tbe commission in tbe first instance affirms or denies .the right of an injured workman to participate in tbe fund. But a majority of tbe court are of tbe opinion that tbe provision is plain and unambiguous, and grants the right of appeal-from the final action of tbe commission in any proceeding before it, which involves tbe allowance, re-arrangement or termination of compensation to an injured workman. Tbe Attorney General complains that tbe verdict of the jury did not warrant tbe court in ordering tbe commission to award plaintiff a lump sum payment in any amount, or compensation for total disability; that tbe judgment most favorable to plaintiff that tbe court was authorized to give upon tbe verdict was for permanent partial disability, with compensation payable in monthly payments for a period less than eighty months. Tbe jury by their verdict found: “ * * that as a result of” bis original injury “and as a continuous aggravation thereof tbe plaintiff lost bis right eye and that the same was removed and that tbe plaintiff is entitled to recover full compensation therefor.” Also “ * * that as a result of said injury plaintiff’s left eye became sore and inflamed' and affected and that said left eye has continually grown worse from tbe date of said accident to this date and that plaintiff’s loss of vision thereof is 50 per cent and that plaintiff is now permanently incapacitated from any work at any gainful occupation.” — 672 — Based upon the verdict, the court ordered the commission to “fix, allow and pay * * plaintiff for the complete loss of his right eye * * $800” in a lump sum, as provided by the act at the time plaintiff received his original injury. The court also construed the verdict as a finding that the plaintiff had suffered a permanent total disability, as the result of his injury, and accordingly directed the commission to award and pay plaintiff the sum of $30 per month in monthly payments. At the time plaintiff was injured, permanent partial disability, as it applies to plaintiff’s case, was defined and compensated for as follows: “Permanent partial disability means the * * loss of one eye * * or any other injury known in surgery to be permanent partial disability. Where permanent partial disability shall result from any injury, the workman shall receive the sum of twenty-five dollars ($25) a month for the period stated against such injury, respectively as follows: * * “The permanent and complete loss of the sight of one eye forty (40) months, or, at the option of the workman, eight hundred and fifty dollars ($850) in a lump sum. * * “In all other cases of injury resulting in permanent partial disability, the compensation shall bear such relation to the periods stated in this clause as the disabilities bear to those produced by the injuries named in this schedule, and payments shall be made for proportionate periods, not exceeding, however, ninety-six (96) months * * .” Subd.. (f), § 20, Chap. 112, Laws of 1913. The foregoing provisions were amended in 1917 by the omission of the provision for a lump sum payment: Section 21, Chap. 288, Laws 1917; Subd. (f), § 6626, Or. L. — 673 — Total loss of eyesight or such paralysis or other condition permanently incapacitating the workman from performing any work at any gainful occupation constitutes permanent total disability within the meaning of the act, and entitles, the injured workman suffering therefrom, if unmarried, to compensation at the rate of $30 per month during the period of such disability: Subd. (b), § 6626, Or. L. 7. The judgment of the Circuit Court in effect awarded plaintiff compensation for permanent partial disability resulting from the loss of the sight of his right eye, which occurred long prior to his application for increased compensation, and in addition thereto awarded plaintiff compensation for total disability resulting from the loss of his right eye, and the subsequent loss of 50 per cent vision of his left eye. The award so directed amounts to double compensation, which is not authorized by the act. Where a claim is made for aggravation, the right thereto is to be determined by the condition of disability existing at the time of the application or hearing thereon, and the award of compensation is based on that condition, and cannot be swelled by adding thereto compensation for the different stages of disability which precede that condition; the act prohibits the operation of the award so made for any period prior to application therefor: Subd. (i), § 6626, Or. L.; subd. (c), § 6632, Or. L. The statute does not authorize an award to plaintiff in excess of the maximum prescribed for total permanent disability, viz., $30, payable in monthly payments while the disability continues, consequently the provision of the judgment for a lump sum payment is invalid. — 674 — 8. The Attorney General points out that, under the Compensation Act, total permanent disability aris-. ing from the loss of eyesight, arises only when there is present a total loss of eyesight, and argues that the finding of the jury that plaintiff has suffered a total loss of the sight of his right eye and the loss of 50 per cent of the vision of his left eye, the total loss of eyesight essential to constitute total permanent disability, as defined by the statute, is not present. The Attorney General insists that inasmuch as the jury found in effect that plaintiff retains 50 per cent of the vision of one eye, the verdict is a determination that as a result of his injury, plaintiff is now suffering from permanent partial disability; that such finding must prevail over the subsequent clause in the verdict, “that plaintiff is now permanently incapacitated from any work at any gainful occupation.” The reported cases tend to support the contention of the Attorney General. Those cases indicate that where any useful vision remains, the disability is partial, and an award of compensation for total disability is not authorized: Keyworth v. Atlantic Mills, 42 R. I. 391 (108 Atl. 81, 8 A. L. R. 1322, and annotated note, p. 1324); 19 N. C. C. A. 707, and note collecting the reported cases. 9. The jury did not find that plaintiff’s incapacity from performing any work at any gainful occupation was caused by his original injury. It may have been induced by some other cause. The finding of the jury in that respect is in the nature of a conclusion drawn by the jury from the previous finding of fact. "When the facts as found by the jury in the instant case are present in any case, the act defines the condition as permanent partial disability. The conclusion of the jury under discussion is without basis of fact in the — 675 — verdict, and may be disregarded. It follows that the verdict did not authorize the tidal court to direct the commission to award plaintiff compensation based upon total permanent disability. The Circuit Court should have found in conformity with the verdict that as a result of plaintiff’s original injury, he had completely lost the sight of his right eye and had suffered a loss of 50 per cent of the sight of his left eye. Judgment should have been given, reversing the case, and referring the same back to the commission, with an order directing it to fix plaintiff’s compensation in accordance with the findings made by the court, and to award plaintiff compensation for permanent partial disability at the rate of $25 per month, payable monthly for not less than sixty months from the date of plaintiff’s application herein. The commission, under the authority of the statute, may require plaintiff to submit himself to the examination and treatment of eye specialists from time to time, and if under such treatment the useful vision of plaintiff’s left eye increases, a modification of the award to conform to the improved condition and diminished disability may be made, after reasonable notice to plaintiff; or if a total loss of eyesight shall develop, compensation may be rearranged and an award made for total disability. The judgment of the Circuit Court is reversed, and the cause remanded, with directions to make findings and enter judgment upon the verdict as above indicated, with the modification that the commission shall be directed to pay to plaintiff in a lump sum all past due installments of compensation. Reversed and Remanded With Directions. Rehearing Denied.