This is an appeal by the defendant, State Industrial Accident Commission, from the judgment of the circuit court based upon the verdict of a jury awarding the claimant, Marion Hutchins, compensation in accordance with the terms of said verdict, as follows: *Page 421
Interrogatory No. 1. What is plaintiff's permanent partial disability by reason of his accident of June 3, 1935, as compared to the lost function of a leg severed at or above the knee?
"(Answer in per cent.) Answer: 90 per cent."
On the 28th day of February, 1938, the commission, having had under consideration the proceedings and testimony in plaintiff's claim, made and entered an order whereby it ordered that the final order of December 23, 1937, be affirmed, and denied said petition for rehearing. The order of December 23, 1937, was as follows:
"It is hereby ordered that compensation for temporary total disability be terminated as of December 16, 1937, and that said claimant be made an award for permanent partial disability of 48 degrees, covering all conditions, and that this shall constitute full and final settlement of any and all claims or disability arising out of an injury suffered by said workman on June 3, 1935."
The record shows that Marion Hutchins was injured on June 3, 1935, while employed by the City of Sheridan, in Yamhill county, Oregon, and that he and his employer were working under the Workmen's Compensation Act and entitled to the benefits thereof. The accident report was filed on June 12, 1935. It shows that a scaffold had broken with Mr. Hutchins and that he bruised and contused his legs, arms and abdomen, and received a right inguinal hernia, which has since been cured. His claim was allowed and compensation was paid for temporary total disability from the date of the accident for a period of three months, seven and one-half days, and the claim was closed by a first final order dated August 26, 1935. Thereafter, and on September 5, 1935, a petition for rehearing was filed *Page 422 and by order dated September 30, 1935, the claim was reopened for a continuation of temporary total disability until further order of the commission. Hutchins was thereafter carried on temporary total disability until December 16, 1937, and on December 23, 1937, the commission made an order terminating plaintiff's temporary total disability as of December 16, 1937, as shown above.
Plaintiff filed an application for rehearing on February 7, 1938. The commission granted the rehearing and made the following order, which was undoubtedly a final order:
"That the claim of Marion Hutchins, for compensation on account of accidental injury sustained June 3, 1935, was closed by final order dated December 23, 1937, that thereafter and within the period of sixty days said claimant applied for and was granted a rehearing; that said rehearing was held on February 21, 1938, and the commission now being fully advised in the premises, it is hereby ordered that said final order be and the same is hereby affirmed.
"Dated at Salem, Oregon, February 28, 1938."
It is stated by defendant that there is only one point involved in this case, namely, did the plaintiff have a right to appeal from the order dated February 28, 1938?
Section 49-1842, Oregon Code 1930, provides in part as follows:
"The commission shall have full power and authority to hear and determine all questions within its jurisdiction. 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, *Page 423 decision or award must, before he appeals to the courts, file with the commission an application for rehearing, which application must be filed within sixty days from the day on which such copy of such order, decision or award was mailed claimant. * * *."
It is not questioned but that the plaintiff complied with this section. It is the contention of the defendant, however, that the plaintiff should have appealed from the order of December 23, 1937, instead of filing a petition for rehearing. The defendant designates this petition as the second petition for rehearing. In numerical order it may be the second petition, but it is not the second petition for rehearing of the same order. While the order of February 28, 1938, by affirming or adopting the order of December 23, is similar in form, it covered and applied to a different situation. The condition of claimant from December 23, 1937, to February 7, 1938, was involved and was covered by the order of February 28, 1938. The order of February 28, 1938, was a different order or award from the order of December 23, 1937. The petition for rehearing filed by the claimant February 7, 1938, was recognized and considered by the commission. As stated in the complaint, on the 21st day of February, 1938, defendant having fixed said time for the taking of testimony on said rehearing, plaintiff appeared in person and by his attorney and offered testimony tending to sustain the averments of his petition for rehearing. Thereafter, on February 28, 1938, the defendant having considered the proceedings and testimony in plaintiff's claim, made the order affirming the order of December 23, 1937, which last mentioned order did not take into consideration, and the commission did not at that time have before it, the *Page 424 testimony produced and the proceedings held on the 21st day of February, 1938.
The statute provides in such cases that "If a rehearing is granted the commission shall consider all facts, including those arising since making the order, decision or award involved, and shall enter such order as the facts and law shall warrant." Section 49-1842, Oregon Code 1930. In the present case the plaintiff, within 30 days after copy of the final order of the commission had been mailed to him, appealed to the circuit court in the county in which the accident occurred, in compliance with section 49-1843, Oregon Code Supplement, 1935.
It is contended by defendant that in accordance with the opinion in the case of Hilger v. State Industrial AccidentCommission, 158 Or. 591, 76 P.2d 972, the plaintiff should have appealed from the order of December 23, 1937. We do not think that the opinion in the Hilger case authorizes the plaintiff to appeal from the original order of December 23 awarding permanent partial disability of 48 degrees without making an application for rehearing.
The purpose of an application for rehearing is to give the commission a chance to change its order and it never had an opportunity to change the order fixing the 48 degrees until a petition for rehearing of that order had been filed. We do not understand that the opinion in the Hilger case authorizes such an appeal. That would not be in harmony with the statute which provides that "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" within the time provided. As we *Page 425 construe the opinion in the Hilger case, that case differs from the one in hand.
We quote from the oral argument of the learned attorney for defendant in the present case, in answer to a question by the Chief Justice, as follows: "These two orders in February, 1938, and December, 1937, were they identical in terms?"
"A. No, except that the one in February merely affirms the one in December. In that sense, — they are not identical, but one affirms the other, and in the meantime a petition had been filed and a hearing held."
In the Hilger case, as the opinion shows, on January 29, 1935, plaintiff filed with the defendant commission an application for a rehearing of the order of December 28, 1934, in which application he claimed he was entitled to temporary total disability for a period of 10 months, from and after December 28, 1934, and to permanent partial disability equal to the loss of vision of one eye based on the injury to both eyes. The commission on March 22 made an order reopening the plaintiff's claim for temporary total disability and further treatment, and, in accordance with said order, plaintiff was paid compensation for temporary total disability from the 27th of March, 1935, until the 13th of April, 1935, which was held not to be a final order, and on the 18th day of April, 1935, the defendant made a final order again closing plaintiff's claim with an award for additional compensation for the loss of vision of the right eye equal to 15 per cent loss of said eye, which, as we understand, is and was regarded as a practical denial of the application for rehearing made January 29, 1935, and from which order an appeal to the court was allowed. *Page 426
There is a different setup in the present case from that in the Hilger case. Here for the first time, on December 23, 1937, the commission terminated the order for compensation for temporary total disability as of December 16, 1937, and made an award for permanent partial disability of 48 degrees, covering all conditions. Under the plain provisions of section 49-1842, before plaintiff could appeal to the court from the order of December 23, 1937, he was required to file an application for rehearing, which had never been done before the application upon which the defendant granted and held a rehearing, after which the commission, by order of February 28, 1938, adhered to and affirmed the order of December 23, 1937. The order of February 28, 1938, was a final order closing the case.
The commission denominated the application for rehearing as a second application and complains that it opens the door for extending the proceedings to an undue length. There can be no application for rehearing unless there is an order of the commission to be reheard. In other words, the commission controls that matter. The proceedings in this case were not unduly extended and were ended by the order of February 28, 1938. The statute does not limit a claimant to one application for rehearing of an order or award, when the order or award is different from that in which a former application for rehearing has been filed.
It has been stipulated that the amount to be allowed plaintiff's attorneys for their services upon this appeal should be fixed by the court. In the circuit court, pursuant to contract by plaintiff and his attorneys, a fee in the sum of 25 per cent of any award or compensation for permanent partial disability in *Page 427 excess of 48 degrees was allowed. It seems that this contract was reasonable and should not be disturbed. It is therefore approved. The amount awarded by the verdict and judgment in the circuit court was increased in the sum of $780. We think 10 per cent of this sum, or $78, would be a fair compensation for the services of the attorneys upon the appeal in the supreme court, and the same, together with the amount allowed for attorneys' fees in the circuit court, is hereby declared to be a lien against the compensation payable to plaintiff pursuant to the judgment, and defendant is hereby authorized to pay the same, together with the judgment, in accordance with the schedule of compensation provided by statute.
Plaintiff having strictly complied with the terms of the statute referred to, entitling him to appeal, his appeal should be allowed and a judgment should be entered in accordance with the verdict of the jury on appeal in the circuit court.
It is so ordered.
KELLY, ROSSMAN and BELT, JJ., concur.
RAND, C.J., concurs in the result