ON THE MERITS (12 2d 1006) IN BANC. Proceeding under the Workmen's Compensation Act by James W. Goss, claimant. From a decree of the circuit court in favor of the claimant, on appeal from the State Industrial Accident Commission, the Commission appeals.
REVERSED. This case was prosecuted under the Oregon Workmen's Compensation Law: See General Laws of Oregon, 1913, Chapter 112, codified as sections 49-1801 to 49-1845, Oregon Code 1930. It arose out of an accidental personal injury sustained by the claimant on May 26, 1924, in the course of his employment in the lumbering plant of Ewauna Box Company of Klamath Falls, both the Company and the claimant being under the protection of the Workmen's Compensation Law. Following the injury, the injured man filed his claim therefor with the State Industrial Accident Commission, and, on October 22, 1924, accepted from the Commission a check for $176.40 in full payment for the injury sustained.
The record discloses that, during the time intervening between the date of the settlement and the month of April, 1931, the claimant was able to perform only 2 1/2 days' labor, and could get about only by the use of *Page 153 crutches; that, during this time he was examined and treated by many physicians, all of whom informed him that he was suffering from rheumatism, but that he found no relief from any of such treatment. Finally, early in 1931, he went to Mayo Bros., noted physicians of Rochester, Minn, for an examination, and there ascertained for the first time that the condition from which he was suffering was a result of the injury sustained by him more than six years prior thereto.
On March 31, 1931, Ewauna Box Company, in whose employ claimant had been when injured, wrote the Accident Commission, informing them of the continuance of the claimant's injuries, and, during the month following, the claimant, by reason of the information received from Mayo Bros. concerning his condition, appeared in person before the Commission and made application to have his case reopened. Thereafter, the Commission wrote claimant as follows:
"Mr. James W. Goss, 423 Michigan Ave., Klamath Falls, Oregon.
"Dear Sir:
"The Board has given your case considerable thought and study since your appearance here on April 4. However, the Commission is of the opinion on account of the history of your case and the long time that has elapsed since it was closed that they would not be justified in reinstating you at this late date.
"No special fund has been provided for the purpose of taking on claims that have been closed for a period of six years as your claim has been closed, and in the absence of such fund the Commission is fearful that to reopen and reinstate your claim would establish a precedent that would threaten the insolvency of the industrial accident fund. *Page 154
"Under the circumstance I am instructed to inform you that your case would not be reopened.
"Yours truly, "State Industrial Accident Commission, "P.E. Jackson, Claim Agent."
The claimant applied to the Commission for a rehearing, which was denied. An appeal was taken to the Circuit Court of Klamath county, where a jury trial was had and the trial court found that the then physical condition of the claimant which condition had existed since May 26, 1924, was the direct and proximate result of the injury received by him on May 26, 1924; that claimant had not been able to engage in any gainful occupation since the date of the injury, and that his disability was a total disability. As conclusions of law, the court found:
"That the order of the State Industrial Accident Commission entered on the 5th day of April, 1931, disallowing plaintiff's application for reinstatement, and the order of the State Industrial Accident Commission denying plaintiff's petition for a rehearing, should be reversed, set aside and declared for naught, and plaintiff is entitled to a decree directing said * * * Commission to fix the compensation of plaintiff, including compensation from October 19, 1924, in accordance with the findings of the court and the jury."
Based upon its findings and conclusions, the court ordered and decreed that the order of the Accident Commission dated May 14, 1931, denying claimant's application for a rehearing upon an order entered by the Commission on April 5, 1931, disallowing his application for reinstatement, "shall be, and the same is hereby, reversed and remanded to the said State Industrial Accident Commission," and further ordered *Page 155 that the Commission forthwith fix the compensation of the claimant in accordance with the findings hereinabove set out. From that decree, the Commission has appealed to this court. Over and over again we have asserted that the provisions of the Workmen's Compensation Law should be liberally construed and fairly applied, to the end that its humane purposes might be carried out. It was also the manifest purpose of the Compensation Law that compensation should be adjusted from time to time, as the disability increased or diminished: Farrin v. StateIndustrial Accident Commission, 104 Or. 452 (205 P. 984);Chebot v. State Industrial Accident Commission, 106 Or. 660 (212 P. 792). Moreover, section 49-1827, Oregon Code 1930, provides a means of allowing compensation in the event that the condition of a claimant becomes worse after final order, or in the event that a latent disability results from the injury and is discovered only after final order. That section reads, in part:
"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, readjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments."
The claimant in the instant case has made no attempt to secure compensation under the statutory provision just quoted, but relies entirely upon the case of Meaney v. State IndustrialAccident Commission, 113 Or. 371 (227 P. 305, 232 P. 789). This is erroneous. *Page 156 The Meaney case was heard in the Circuit Court prior to the 192c5 amendment of subdivision (c), section 49-1836, Oregon Code 1930, which reads:
"If subsequent to the last award or arrangement of compensation by the commission there has been an aggravation of the disability resulting from an accidental injury, the injured workman shall file with the commission an application for increased compensation, which application shall set forth sufficient facts to show an aggravation in such disability and the degree thereof. Any application for increased compensation for aggravation must be filed within one year from the date of the first award of compensation to the claimant. No increase or rearrangement in compensation shall be operative for any period prior to the application therefor. However, the power and jurisdiction of the commission shall be continuing, and it may, upon its own motion only, from time to time make such modification or change with respect to former findings, orders or awards as in its opinion may be justified, but no appeal from or review of such proceedings shall be had."
The claimant says in his brief:
"Claimant * * * does not claim that there was an aggravation of his disability, and only claims that, through a mistake of both himself and the Commission, a final order was made terminating his compensation; that, later, he learned that he was suffering during all of the intervening years from the same injury to the same extent as that suffered between May 26, 1924, and October 22d of the same year."
The State Industrial Accident Commission is of statutory creation, and that body is without authority to expend the funds derived from the administration of the Workmen's Compensation Law in any way except as provided in the law by which it was created. We have searched the statute in vain for some provision *Page 157 that would clothe the Commission with authority to pay the amount that the claimant herein alleges is due him for that period of time intervening between the date of his settlement with the Commission and the date of the trial in the Circuit Court in the year 1932. Moreover, the Compensation Law specifically enacts that "no increase or rearrangement in compensation shall be operative for any period prior to the application therefor."
We also direct attention to the decision of this court in the recent case of Monahan v. State Industrial Accident Commission,139 Or. 417 (10 P.2d 605), a case similar in point of fact to the one under consideration. From a perusal of that case it appears that the Accident Commission had entered an order denying the petition of Monahan "for the reason that same was not filed within the time required by law, and for the further reason that said claimant accepted check in final adjustment of his claim." With relation to the time limitation referred to in the order of the Commission, the court there said:
"Section 49-1836, Oregon Code 1930, provides that any application for increased compensation from the Industrial Accident fund, sought on account of aggravation of the injury, must be filed with the Commission within one year from the date of the first award of compensation."
In that case, as in the case at bar, the claimant believed, and acted upon the theory, that the Commission was mistaken in its understanding of the character of his injury at the time it made its award. The opinion therein continues:
"Section 49-1842, * * * provides: `The Commission shall have full power and authority to hear and determine all questions within its jurisdiction. *Page 158 Whenever the Commission has made any order, decision or award pertaining to any claim, it shall promptly serve the claimant with a copy thereof by mail, which shall be addressed to the claimant's last known address as shown by the records of the Commission. Any claimant aggrieved by any such order, decision or award must, before he appeals to the courts, file with the Commission an application for rehearing.'
"Section 49-1843 makes provision for appeals to the Circuit Court from the decisions of the Commission. The only portion of it which is material to our present problem is the following:
`Within thirty days after a copy of the final order of the Commission upon such application for rehearing has been mailed claimant, as herein provided, or within thirty days after rehearing is deemed denied under section 49-1842, claimant may appeal to the Circuit Court * * *.'
* * *
"But section 49-1836, subdivision (c), provides:
`If subsequent to the last award or arrangement of compensation by the commission there has been an aggravation of the disability resulting from an accidental injury, the injured workman shall file with the commission an application for increased compensation, which application shall set forth sufficient facts to show an aggravation in such disability and the degree thereof. Any application for increased compensation for aggravation must be filed within one year from the date of the first award of compensation to the claimant. No increase or rearrangement in compensation shall be operative for any period prior to the application therefor. However, the power and jurisdiction of the commission shall be continuing and it may, upon its own motion only, from time to time make such modification or change with respect to former findings, orders or awards as in its opinion may be justified, but no appeal from or review of such proceedings shall be had.'" *Page 159
The court, speaking through Mr. Justice ROSSMAN, concludes with the following language:
"Yielding to subdivision (c) of section 49-1836 the effect which we believe we must, it is our opinion that, while the Commission owes at all times the duty to make such modifications and changes in its former awards of compensation as the circumstances demand, yet no appeal is available to those aggrieved by the refusal of the Commission to gratify their demands who have allowed the time for appealing from the final award to expire, except in those instances where the claim is based upon an application for increased compensation due to an aggravation of the original injury.
"The above being our conclusion, it follows that the judgment of the Circuit Court must be reversed."
As we have heretofore indicated, the power of the State Industrial Accident Commission is limited to the power specifically prescribed by the enactment that gave it being. We have hereinbefore made reference to that enactment.
Under the facts disclosed by the record herein, the lower court did not have jurisdiction to hear and determine the case. Therefore, the judgment rendered by that court is hereby reversed and the cause remanded. *Page 160