I do not agree with the majority opinion. After successive hearings the commission, on January 13, 1936, found that the employee had sustained accidental injury to his back and left leg as claimed, and ordered the employer to continue compensation for temporary total disability. This order was complied with until July 16, 1936, and on August 6th, that year, the employer filed its motion to discontinue compensation as of July 16th, on the ground of complete recovery of the employee.
At a hearing had on the aforesaid motion, and after hearing considerable evidence as to the status of the employee's multiple injuries, and pursuant to a stipulation of the parties worded as follows: "It is stipulated and agreed that his temporary total disability ended as of July 27, 1936, and it is now on to determine the claimant's permanent partial disability", the commission on November 12, 1936, entered the following order:
"Now on this 12th day of November, 1936, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to a hearing held at Pawhuska. Okla., Oct. 20, 1936, before Chairman T.B. Lunsford, on respondent's motion to suspend compensation as of July 16, 1936, at which hearing the claimant appeared in person and Edgar G. Theus appearing for Leo Williams, claimant's attorney, the respondent being represented by Routh McKinney, the subsequent hearing at Okla. City, Okla., October 30, 1936, before Chairman T.B. Lunsford, the claimant appeared in person and by his attorney, Leo Williams, the respondent being represented by Routh McKinney, and the Commission after reviewing the testimony taken at said hearing, examining all the records on file and being otherwise well and sufficiently advised in the premises, finds:
"1. That respondent's motion to suspend payment of compensation as of July 16, 1936, should be sustained.
"2. That as a result of said accidental injury the claimant has sustained a 35 per cent. permanent partial loss of use of the left lower leg.
"The Commission Is of the Opinion: That upon consideration of the foregoing facts that claimant is entitled to 52 1/2 weeks' compensation at the rate of $14.04, comweek, or the sum of $737.10, on account of the 35 per cent. permanent partial loss of use of the left lower leg.
"It Is Therefore Ordered, That within fifteen days from the filing of this order the respondent pay to the claimant the sum of $245.70, being 17 weeks and 3 days compensation at the rate of $14.05, computed from July 16, 1936, to November 1, 1936, and continue paying compensation at the rate of $14.04 until the total sum of $737.10 has been paid for the 35 per cent. permanent partial disability to the left lower leg.
"It Is Further Ordered: That $147.42 is a reasonable attorney fee for Leo Williams, *Page 223 claimant's attorney, for legal services rendered in said cause, same to be paid out of the compensation heretofore paid claimant.
"It Is Further Ordered: That within thirty days from the filing date of this order the respondent file with the commission receipts or other proper reports evidencing compliance with the terms of this order."
More than 30 days thereafter, December 19, 1936, the employee filed his pleading denominated "motion for hearing", wherein he alleged that the order of November 12, 1936, mentioned only the leg injury, leaving, therefore, all other disability open for further determination, and asking that the commission proceed to make determination of his total disability other than that of his leg.
The employer made timely resistance of this motion and vigorously objected to the jurisdiction of the commission to further hear the case. However, the commission assumed jurisdiction of the matter and found that the back injury remained an open question after the order of November 12th, and proceeded to enter the order now under review, finding that the employee had sustained permanent partial disability to his back as a result of the original injury.
The question of change of condition of the injured employee does not enter this proceeding. No such contention is advanced. The controversy is centered entirely upon the proposition whether the order of November 12, 1936, became final as to all claims of the employee. If the same was a final order as to all questions of disability, the employee's only remedy lay in a review thereof by this court. Section 13363, O. S. 1931, 85 Okla. Stat. Ann. sec. 29; Concho Washed Sand Co. v. Worthing,166 Okla. 105, 26 P.2d 415. In this the employer assumes the affirmative position, and asserts that the order of November 12th became final as to the multiple injuries.
On the date the last-mentioned order was entered, the former order of the commission awarding compensation for temporary total disability for both the leg and the back was in force. The aforesaid motion of the employer was interposed for the purpose of suspending future payment of that compensation by reason of the alleged recovery of the employee. In view of that motion, the evidence taken thereon and the above-mentioned stipulation, the commission was charged with the duty of determining whether the employee had suffered permanent disability, the extent thereof, and of making a suitable award. The issue as to whether there was such disability was raised by the aforesaid motion of the employer wherein it is charged that "the claimant has recovered from his injury and is in no further need of medical attention." Therefore, the question whether the employee had recovered from his multiple injuries was placed squarely before the commission, and, after hearing and considering sharply conflicting testimony concerning the present status of the injuries, especially that to the back, the commission entered its order of November 12th, aforesaid, holding:
"1. That respondent's motion to suspend payment of compensation as of July 16, 1936, should be sustained.
"2. That as a result of said accidental injury the claimant has sustained a 35 per cent. permanent partial loss of the use of the left lower leg."
The employer contends that this order sustaining its motion constituted a direct adjudication of the issue pertaining to the disability arising from the back injury.
I agree with the employer's contention. The sustaining of the motion constituted a direct finding upon all the issues of fact raised thereby; and all those issues were resolved in favor of the employer, except such issues as were specifically decided in favor of the employee. The motion sought the commission's ruling upon the present status of all injuries for which the employer was then paying compensation. Those were injuries to the back and to the leg. We are to presume that an award when made is based upon all the evidence submitted to the commission. Wise-Buchanan Coal Co. v. Risco, 150 Okla. 190,1 P.2d 411. With all the facts before the commission, it was its duty to either award or deny compensation for permanent disability to the back (Sinclair Prairie Oil Co. v. State Industrial Commission, 178 Okla. 375, 62 P.2d 1027); we believe the commission fulfilled its duty in this respect and, rightly or erroneously, according to the evidence, denied compensation for the back injury.
In the last-cited case, where the employee had filed a motion to reopen a case for the purpose of determining the extent of permanent disability to an eye, this court, in speaking of the effect of the commission's order denying the motion after hearing all the evidence as to the eye injury, said that such order was equivalent to denying the claim for compensable injury to the eye and that such order constituted a final adjudication *Page 224 of the matter in the absence of timely proceeding for review.
Conversely, when a motion is sustained, the order is an adjudication of all the issues raised thereby.
The employee says that the order of November 12, 1936, was silent as to the back injury and was therefore not an adjudication of that issue. He attempts to sustain this position and the order here reviewed by the rule stated in Meador Whitaker Co. v. Davis, 177 Okla. 387, 60 P.2d 753, as follows:
"In cases where multiple injuries are presented to the State Industrial Commission and that administrative board upon a consideration of the matter awards compensation based upon one or more of the injuries complained of, but fails to make any finding in its order either denying or awarding compensation for other injuries, it is presumed that the injuries not mentioned have not been considered and determined. The commission can thereafter consider and determine what compensation, if any, should be awarded for the injuries not treated in the previous order without a showing that the injured workman had sustained a change of condition."
This case followed Fox v. Brown, 176 Okla. 201, 55 P.2d 129.
The rule relied upon is not applicable to the circumstances present in the instant case. The order of November 12th was not silent as to the back injury. It specifically sustained the position taken by the employer in its motion, namely, that the employee had recovered from all injuries for which compensation was then being paid, with the exception that the position was not sustained with reference to the leg injury. This was a positive holding that the employee had recovered from the back injury. As was the holding in the Sinclair Prairie Case, above, sustaining the motion after considering the evidence submitted upon the issues thereby raised, was an adjudication of those issues adversely to the employee.
In view of the fact that the order of November 12, 1936, had become final, the commission was without jurisdiction to enter the order of January 27, 1937, and I am of the opinion the award should be vacated.
I am authorized to say that Mr. Justice WELCH concurs in these views.