The plain meaning of the statute of limitation involved herein is changed by the so-called liberal construction in the majority opinion. To reach its conclusion, that opinion inserts words into the statute that were not employed by the Legislature. If the statute is to be changed, it is the function of the Legislature to do so.
It is provided in 85 O. S. 1941 § 43:
"The jurisdiction of the commission to reopen any cause upon an application based upon a change in condition shall extend for the maximum period of time measured by the number of weeks for which compensation could have been awarded by the commission had the condition of claimant existed at the timeoriginal award was made thereon and unless filed within said period of time, same shall be forever barred."
Construing the foregoing statute, this court has held that the period of time during which the State Industrial Commission has jurisdiction to reopen any cause upon change of condition is to be calculated from the date of the last prior order or award made by the commission (Earl W. Baker Co. v. Morris,176 Okla. 68, 54 P.2d 353); and in Behling v. Fox Rig Lbr. Co., 187 Okla. 682, 105 P.2d 532, it was held:
"The State Industrial Commission has no jurisdiction to reopen a cause upon change of condition where the application is filed subsequent to the time for which the condition, as changed, would have been compensable if it had existed when the original award was made."
The disability of the respondent being a permanent partial disability to a leg, the schedule of compensation therefor was fixed and limited by subdivision 3, sec. 13356, O. S. 1931, 85 Okla. Stat. Ann. § 22, subd. 3. Respondent in his application to reopen the cause did not claim and by the evidence submitted did not offer to prove that he had more than a 50 per cent permanent partial disability to his leg at the time the hearing was held, and under the evidence thus submitted the trial commissioner found that the respondent had only a 35 per cent disability in his right leg. It therefore is apparent that had this degree of disability existed on February 15, 1939, when the last previous award of the commission was made, the limit of time for which compensation could have been awarded at that time would have expired more than nine months before the application to reopen was filed. Therefore, under the provisions of the statute, supra, and the former decisions of this court, the State Industrial Commission was clearly without jurisdiction to entertain the application of the respondent and to make the award which is here submitted for review. The respondent relies upon Johnson v. Johnson, 182 Okla. 293,77 P.2d 745, and Board of Com'rs of Rogers County v. Baxter,113 Okla. 280, 241 P. 752, to sustain the award on the ground that the period of time *Page 105 provided in the statute should be calculated from the date that the mandate of this court was received by the State Industrial Commission. The foregoing cases, when examined, reveal that the first is authority for the rule that where a person is prevented by paramount authority from exercising a legal remedy the statute of limitations will be suspended, and the next is authority for the rule that where a right of action results from the reversal of a cause the statute of limitations does not begin to run until the mandate has been received and spread of record. Neither case is in point.
A proceeding in this court to obtain a review of an order or award of the State Industrial Commission acts to supersede the jurisdiction of the commission as to the particular matter involved, but does not interfere with the general jurisdiction of the State Industrial Commission in matters not so involved. Scruggs Bros. Bill Garage v. State Industrial Commission,94 Okla. 187, 221 P. 470; Hailey-Ola Coal Co. v. State Industrial Commission, 123 Okla. 64, 251 P. 1040. On the other hand, the jurisdiction of the State Industrial Commission is a continuing one so far as its power to make awards on change in condition is concerned. White Oak Refining Co. v. Whitehead,149 Okla. 297, 298 P. 611.
It follows that the respondent was not precluded from filing his application to reopen his cause and to be granted additional compensation by the pendency of the former proceeding in this court, and that therefore he was not prevented by any paramount authority from exercising the remedy provided him by statute, and it goes without saying that his right to additional award on change in condition would not arise by reason of the previous award becoming final, and therefore the date when the mandate of this court was received by the State Industrial Commission became immaterial.
I therefore respectfully dissent.