This case, in my opinion, is governed by the decision inHilger v. State Industrial Accident Commission, 158 Or. 591,76 P.2d 972; and I am, therefore, compelled to record my dissent from the opinion of the court.
In the Hilger case the plaintiff was compensated for temporary total disability for a period of time following his injury; at the end of that period the commission entered an order terminating such compensation and granting an award for permanent partial disability; *Page 428 the plaintiff thereupon filed a petition for a rehearing, claiming compensation for further temporary total disability and a more serious permanent partial disability than the commission had found; the commission then made an order reopening the case and paid the plaintiff compensation for temporary total disability pending its decision on the application, and finally closed the case by an order increasing its first final award, though not to the extent sought by the plaintiff. It was from this order that Hilger appealed to the circuit court. The commission contended that this was not an appealable order under the statute; that the plaintiff should either have appealed from the order reopening the case or should have filed a second petition for rehearing. This court, in an opinion by Mr. Justice BAILEY, rejected the commission's contentions and held: that the order reopening the case amounted merely to the granting of a rehearing to decide the issues raised by the application; that no additional petition for rehearing was required; and that the order appealed from was the final order upon the plaintiff's application for rehearing, and hence the order from which an appeal may be taken to the circuit court, under § 49-1843, Oregon Code 1930, as amended by chapter 455, Oregon Laws 1933. A further amendment of that section (chapter 178, Oregon Laws 1935) is without bearing on the present question.
In the case at bar the commission made its final award of compensation for temporary total disability on August 26, 1935, "in full settlement for any and all claims arising out of the injury sustained"; the plaintiff on September 5 applied for a rehearing, claiming that he had sustained an injury to his left foot resulting in permanent partial disability, and an injury *Page 429 to the spine; that his condition was not yet stationary, and that when it should have become stationary, he would have sustained 25 per cent lost function permanent partial disability. The petition concluded:
"WHEREFORE claimant prays that he be awarded a rehearing and that on said rehearing he be permitted to offer testimony showing that claimant's condition has not become stationary and will not become stationary for a period of six months, and that he be awarded compensation for permanent partial disability equal to lost function of an arm, as averred, and also 25 per cent lost function of a foot."
On September 30, 1935, the commission made an order reopening the claim, or granting a rehearing, as follows:
"That the claim of Marion Hutchins was closed by final order dated August 26, 1935; that thereafter said claimant applied for and was granted a rehearing. The Commission now being fully advised in the premises,
"IT IS HEREBY ORDERED that the claim be and the same is hereby reopened from date closed for continuation of temporary total disability until the further order of the Commission.
"IT IS FURTHER ORDERED that Attorney Wm. P. Lord be and is hereby allowed an attorney's fee of $25.00 for legal services rendered said claimant."
The record shows no further proceedings until December 23, 1937, when the following order was entered:
"THAT The claim of Marion Hutchins was closed by final order dated August 26, 1935;
"THAT Thereafter and within sixty days from the date of said final order, said claimant filed a petition for rehearing, which rehearing was held on September 26, 1935, following which the Commission by order dated September 30, 1935, reinstated said claim for *Page 430 the payment of further compensation for temporary total disability.
"The Commission now being fully advised in the premises, and it appearing that said claimant's condition is stationary,
"IT IS HEREBY ORDERED THAT Compensation for temporary total disability be terminated as of December 16 incl., 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."
So far, the procedural steps taken in the two cases are identical. The only differences are with regard to the nature and degree of disabilities and length of time elapsing between the orders — differences which are irrelevant to the point here involved. In each case there is a closing order or first final award, a petition for rehearing, a granting of a rehearing and the payment of compensation for temporary total disability pending the decision on rehearing, and a second final award unsatisfactory to the claimant. As stated, it was this award or order from which the appeal was taken in the Hilger case, and properly so, as the court decided. The plaintiff in this case, however, instead of appealing from the order on rehearing, filed a second petition for rehearing, in which he described the same injuries as in the first, and alleged that the commission had erred in its award on the rehearing and prayed for a higher award. The commission thereafter entered an order affirming its previous final order.
Since the procedure in the two cases was the same, the decision ought to be the same. It is not easy to perceive *Page 431 why the identical arguments used by the commission against the claimant and not found valid in the Hilger case, should in this case, when used by the claimant against the commission, be deemed persuasive. While there was no second petition for rehearing in the Hilger case, the commission contended that there should have been, and this court held otherwise. As I read the opinion of the majority, the Hilger case is not overruled, but distinguished. I see no ground of distinction. The Hilger case held that the order determining the rehearing is the final order from which an appeal to the circuit court may be taken; the court now holds that the order on the rehearing of the rehearing is the final order, and inferentially, it would seem, that the claimant by repeated petitions for rehearing, may select his own appealable order. The decision is in direct conflict with the decision in the Hilger case, and will only serve to introduce confusion into a practice which, in the interest of injured workmen, ought to be simple and easy to follow.
It is perhaps unnecessary to add that the requirements of the statute governing appeals from the orders of the State Industrial Accident Commission must, under our decisions, be strictly complied with: Demitro v. State Industrial Accident Commission,110 Or. 110, 112, 223 P. 238; Butterfield v. State IndustrialAccident Commission, 111 Or. 149, 154, 223 P. 941, 226 P. 216.
BAILEY, J., concurs in the foregoing opinion. *Page 432