I cannot agree with the opinion of the majority wherein the term "award," as used in our Workmen's Compensation Act, is defined. The majority opinion states:
"It is further clear that the term 'award' is used by the Legislature as meaning a decision or finding of the Commission, and that the question as to whether or not the claimant was successful in getting the award in his favor, or the insurance carrier or the employer getting the award in their favor, is by no means decisive."
It is not clear to me that the term award" is susceptible of such a definition, for this court no longer ago than January 27, 1931, in the Olentine Case, defined " 'award' as used in section 7296, C. O. S. 1921," to mean "the decision, determination, or judgment for money, hospitalization, crutches or other compensation in favor of an employee, provided for in the Workmen's Compensation Act." Olentine v. Calloway,147 Okla. 137, 295 P. 608; State ex rel. v. Green, 147 Okla. 119,294 P. 787; Okla. Ry. Co. v. St. Indus. Comm., 147 Okla. 129,295 P. 216.
In all of these recent cases the rule is squarely stated that where the State Industrial Commission dismisses claim for compensation or holds by its judgment that claimant has failed to establish an accidental injury arising out of or in the course of his employment, or that no disability has resulted therefrom, and such decision becomes final in the failure of claimant to secure review within 30 days as provided by section 7297, C. O. S. 1921, amended ch. 61, S. L. 1923, that then the Commission is without jurisdiction to review the decision on the ground of change in condition.
Section 7296, C. O. S. 1921, permits a review of an award on the ground of change in condition and authorizes the "ending, diminishing or increasing" of "the compensation previouslyawarded."
Therefore, it seems to me that a condition precedent to subsequent action by the Commission on the ground of change in condition is "compensation previously awarded." Compensation previously awarded is based upon an accidental injury arising out of and in the course of employment. Unless there is compensation previously awarded, there is nothing to end, diminish, or increase as by the statute contemplated to be the subject-matter of the subsequent hearing, and upon which the changed condition, when proven, is to operate.
I would not be harsh in the requirement for "compensation previously awarded," but would hold medical cost sufficient — indeed, it may be under a liberal interpretation that compensation paid either in salary or medical expense in order to obviate an award therefor would suffice, under the view that a judgment and award is useless where payment is voluntarily made.
But turning to the facts in the case at bar, we find that on May 24, 1929, this cause was first heard by the Commission. The Commission found that:
"The claimant alleged a disability resulting from an injury sustained on September 20, 1928."
But, it was recited, the testimony showed that claimant had sustained similar injuries prior to September 20, 1928. That the evidence was insufficient to show disability resulting from the injury of September 20, 1928. Compensation was denied and the cause dismissed.
No review was made within 30 days as by statute authorized, but on January 5, 1930, the claimant filed a motion to reopen on the ground of "change of condition." The movant further states that he has better testimony now than then. Some witnesses were afraid to testify then — "didn't want, to get in bad with the Patterson Steel Company," as disclosed by the majority opinion, but now bold and unafraid witnesses are obtainable who will tell the truth.
It is my view that awards, like solemn judgments, are to be considered as a verity, when final; that there will be no end to litigation or decisions when it is seen that one may abortively present his case, brush the failure aside, and try again.
In the last order, June 2, 1930, the Commission finds it necessary to find that on September 20, 1928, more than two years prior, claimant sustained an accidental injury resulting in a severe injury, that matter was considered by the Commission on May 24, 1929, and compensation was denied and the cause dismissed. The last order of the Commission retroactively allows compensation to date back to May 24, 1929, the very day on which compensation was denied.
My view is that the majority opinion permits relitigation of matter already determined. I would hold that in order for claimant to reopen the cause he must, under these circumstances, not only show a change in condition, but he must also establish "compensation previously awarded" or voluntarily paid in lieu of an award. Vietti *Page 162 v. Crowe Coal Co., 133 Okla. 81, 271 P. 160; Ward v. Beatrice Creamery Co., 117 Okla. 31, 245 P. 570.
The last order made does not purport to be based upon a change in condition, but it is an award made upon a hearing of the original issues between the parties, just as if no prior decision had been entered. It is my view that "a judgment is the end of the law," that "it finally determines the disputes and adjusts the adverse interests of mankind." Freeman on Judgments, par. 1. It is my view that "continuing jurisdiction as contemplated by the Workmen's Compensation Act, section 7325, C. O. S. 1921, as amended by S. L. 1923, ch. 61, p. 118, applies only to cases of which the Commission has jurisdiction, and not to cases that have by it been dismissed as noncompensable and allowed to become final.
In other words, as an exception to the rule quoted from Freeman on Judgments, i. e., "A judgment is the end of the law," where an award is made in favor of claimant, due to "the fact that the nature and probable effect of an injury in many cases cannot immediately be determined by the most proficient physicians or surgeons" (Choetaw-Portland Cement Co. v. Lamb,79 Okla. 109, 189 P. 750), the Legislature, in its wisdom, provided for continuing jurisdiction so that the initial award would not be the end of the law, but the award would be immediately made to allow the workman to live and finality would be postponed so as to permit the full extent of disability resulting from the accident (and compensation therefor) to be embraced within the scope of the original award by a subsequent and supplemental award allowable only on the ground of change in condition, and when that ground is established subjecting "the compensation previously awarded" to be ended, diminished, or increased (sec. 7296, supra).
In the case at bar, by straining at and with the words used in the original order, we might say under a most liberal view that the Commission found an accident arising out of and in the course of employment, "that the testimony is insufficient to show that any disability resulted from the injury sustained onSeptember 20th," but we most certainly must find that the Commission held that no disability resulted therefrom — that compensation was denied — that the cause was dismissed.
Consequently, it is my view that the Commission was without jurisdiction, two years Subsequent to the accident, to review its previous order, adverse to claimant, wherein it had dismissed the claim and ended the cause by its judgment which, right or wrong, was permitted to become final.