PLAINTIFFS' POINTS In all respects the application filed by the respondent, Dan Vukovich on September 11, 1926, was a petition for rehearing. The Industrial Commission treated it as a petition for rehearing and twice in its decision referred to it as a petition for rehearing. The purpose of a petition for rehearing is to call the Commission's attention to any *Page 356 errors it may have made and to permit it to correct such errors if it desires before an appeal is taken. The law does not require useless procedure. In this matter the Commission had made several decisions and another petition for rehearing would merely have encumbered the record. The Commission did rehear the matter after the filing of the petition of September 11, 1926, and no further petition for rehearing was required to give jurisdiction to this court.
The Industrial Commission did not have any authority or jurisdiction to reopen this matter upon the petition of September 11, 1926. The matter was determined October 5, 1925.
There was not a particle of testimony that the applicant's condition had changed under the decision of the Industrial Commission made October 5, 1925, and again on April 9, 1926, and in the absence of any change the Commission was without authority to make any award in January 19, 1927. Its decision was therefore erroneous.
Simpson Const. Company v. Industrial Board of Illinois, etal, 114 N.E. 138; Bloomington D. C.R. Company v. IndustrialBoard et al., 114 N.E. 511; Salt Lake City v. IndustrialCommission, 61 Utah 514; Aetna Life Insurance Company et al. v. Industrial Commission (Utah), 252 P. 567.
DEFENDANTS' POINTS It is defendants' contention that it is necessary, in fact mandatory that before the plaintiffs in this proceeding would be entitled to invoke the jurisdiction of the Supreme Court of this State that they must, within a period of twenty (20) days after the entry of the decision of the Industrial Commission, January 18, 1927, file with the Industrial Commission of Utah a petition for rehearing, and that if they fail so to do they are not entitled to be heard in the Supreme Court with respect to any matters with which they may be dissatisfied.
Section 3148 Compiled Laws of Utah 1917, as amended; Volume 2, Schneider's "Workmen's Compensation Law," Sections 559 and 560;Thaxter v. Finn (Cal.), 173 P. 163; Stacks v. IndustrialCommission of Colorado, 174 P. 558; Passini v. IndustrialCommission of Colorado, 171 P. 369; Bernstein v. Brothman,275 Ill. 290, 114 N.E. 120; Southern Ry. Company v. Glenn,102 Va. 533, 46 S.E. 776; Richmond Cedar Works v. Harper, 106 S.E. 516; Midget Consolidated Gold Mining Company v.Industrial Commission of Colorado, 193 P. 493; Brunette v.Quincy Mining Company, 163 N.W. 1013; Salt Lake City v.Industrial Commission, 215 P. 1047.
The award by the Commission was regular and lawful. The evidence shows that there had been a material change in the condition *Page 357 of the applicant's injury occurring after the first award had been made. The statute confers a continuing power and jurisdiction upon the Commision to enable it to award compensation commensurate with the injury received and the disability sustained.
Salt Lake City v. Industrial Commission, 614 Utah 514;Aetna Life Ins. Company v. Industrial Commission,252 P. 567; Employers' Mutual Insurance Company et al. v. IndustrialCommission of Colorado, 176 P. 314; Ellsworth et al. v.Industrial Commission, 290 Ill. 514, 125 N.E. 246; BloomingtonD. C.R. v. Industrial Board of Illinois, 114 N.E. 511;Safety Insulated Wire Cable Company v. Hudson County Courtof Common Pleas, 90 N.J.L. 114, 100 A. 846; Schaffer v.D'Arcy Spring Company, 199 Mich. 537, 165 N.W. 825; State exrel Klemmer v. District Court, 134 Minn. 189, 155 N.W. 825;Kriegbaum v. Buffalo Iron Works, 182 A.D. 448,169 N.Y.S. 307; Fish v. Rutland R. Company, 189 Ohio App. 352,178 N.Y.S. 439; Schneider's Workmen's Compensation Law, Volume 2, Section 552; Jordon et al. v. Weinman, 167 Wis. 474,167 N.W. 810. Certiorari to review an award of the Industrial Commission of Utah.
Dan Vukovich, an employee of the plaintiff mining company, was injured in the course of his employment for said company on March 13, 1924. The plaintiff Continental Casualty Company carried the insurance and assumed liability for payment of compensation at the rate of $16 per week during the period of temporary disability. On June 9, 1925, Vukovich, through his attorney, made application for compensation. A hearing was had thereon, and on October 5, 1925, defendant commission made an award awarding applicant "$16 per week for a period of 20 weeks, to be paid in a lump sum, without discount." The aggrieved party was given 20 days within which to apply for a rehearing. No application was made. On September 11, 1926, applicant filed another petition for further compensation. The commission treated this petition as an application under Comp. Laws Utah, 1917, § 3144, which provides:
"The powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification *Page 358 or change with respect to former findings or orders with respect thereto as in its opinion may be justified."
Several hearings were had on the last petition, and finally an award was made thereon on January 18, 1927. The findings and conclusions of the commission, in part, are as follows:
"Findings. "In accordance with the evidence submitted, we find the following to be facts:
"Under date of October 5, 1925, the Industrial Commission of Utah ordered the Keystone Mining Company or the Continental Casualty Company to pay to Dan Vukovich compensation at the rate of $16 per week for a period of 20 weeks. Mr. Vukovich, on March 13, 1924, sustained a fracture of the right third transverse process of the lumbar vertebrae. In order to correct this condition the applicant submitted to what is commonly known as the Hibbs operation. The object of the Hibbs operation is to solidify certain portions of the spine adjacent to the injured vertebrae. In order to do that, the spinus processes are broken down and bridged across and in addition to that the joints between the articular facets are denuded of their cartilage by means of a curretting instrument, so that the bones forming the joints will grow together, thereby obliterating the joints. In order to determine whether that process has been accomplished, in reviewing the X-ray plates, we have tried to attempt to see whether or not that process has been successful and if these joints have been obliterated.
"The evidence shows, as testified to by Dr. Holbrook, an orthopedic surgeon, that it takes a good long time to determine whether or not the proper result has been obtained by reason of the Hibbs operation. The X-ray pictures taken in August, 1926, indicate that it has not yet solidified by reason of this operation.
"The commission based its former decision on the theory that applicant's condition was fixed and that the vertebrae between the second and third process would ankylose, unite, and solidify. However, the pictures taken in August, 1926, convinced the commission that there is no hope of securing an ankylosis of the second and third joints of the back.
"We find that, when the decision was rendered on October 5, 1925, applicant's condition was not fixed, and that his condition since that time has changed, and the medical testimony presented on the petition for rehearing and to reopen applicant's case indicates very clearly that there is a changed condition. The commission had no *Page 359 means of determining on October 5, 1925, whether or not the condition was fixed, and it was not until August, 1926, when X-ray pictures were taken, that we were convinced, after reviewing the evidence submitted on applicant's petition for rehearing, that there was no hope of solidifying the joints between the second and third vertebrae, and therefore the commission now finds that the applicant is entitled to additional compensation by reason of the failure of these joints to unite.
"Conclusions. "In view of the foregoing findings, the commission concludes that the Keystone Mining Company or the Continental Casualty should pay to Dan Vukovich 50 weeks' compensation, at the rate of $16 per week, in addition to that heretofore paid; that a reasonable attorney's fee be paid to Mr. Huntsman, who appeared before the commission at all three hearings, would be the sum of $75. This fee is fixed pursuant to section 3148, subsec. E, of the state Industrial Act, and, in our judgment, represents a reasonable fee under the circumstances.
"Wherefore it is ordered that the decision rendered by the Industrial Commission of Utah on October 5, 1925, be, and the same is hereby modified to read: `That, in addition to the compensation heretofore paid to the applicant, Dan Vukovich, the Keystone Mining Company or the Continental Casualty Company be, and they are hereby, ordered to pay to Dan Vukovich compensation in the sum of $16 per week, for a period of 50 weeks, in a lump sum without discount.'
"It is further ordered that the Keystone Mining Company or the Continental Casualty Company pay to attorney W.R. Huntsman, the sum of $75, representing attorney's fee. Said fee is fixed by the Industrial Commission of Utah pursuant to section 3148, subsec. E, of the State Industrial Act, and is to be paid direct to the said attorney and deducted from the compensation herein awarded to the applicant.
"It is further ordered that, in case any party hereto is disatisfied with the decision herein rendered and desires to appeal from the same, application for rehearing must be filed with the commission within 20 days from the date hereof.
"This commission does hereby retain jurisdiction of this claim until the same is finally and fully paid according to law."
No application was made for a rehearing before the commission by plaintiffs before the filing of their application *Page 360 for writ of review. The application for the writ was filed February 16, 1927.
Defendants have filed a notice and motion to vacate, quash, set aside, and dismiss the writ. The contention of defendants is that it does not appear in the application for the writ that plaintiffs applied to the commission for a rehearing of the cause before applying to this court for the writ of review; that therefore this court is without jurisdiction.
Plaintiffs' contention is that the last hearing before the commission was merely a rehearing of the proceeding which resulted in the award of October 5, 1925, and that the commission was without jurisdiction to grant such rehearing.
If plaintiffs' contention be true that the last hearing before the commission was in fact only a rehearing, as that term is used in the Industrial Act, then we are of opinion that plaintiffs' contention is unanswearable. If the commission attempted to grant the applicant a rehearing after the time fixed in its order of October 5, 1925, had expired, such attempt, as we construe the Industrial Act, would be in excess of the commission's jurisdiction, and the proceeding would be void. But defendants deny that the proceeding was a rehearing of the former award of the commission, and insist it was a proceeding under section 3144 of the statute hereinbefore quoted.
We are convinced, from the findings of the commission above quoted and from announcements made by the chairman of the commission during the hearing that it was at least an attempt to exercise jurisdiction under section 3144, 1 supra, which confers continuing jurisdiction upon the commission, as therein provided. Furthermore, while it appears in the findings above quoted that the commission referred to the proceeding as a rehearing, the whole tenor of the proceeding indicates that it was a hearing under the statute conferring continuing jurisdiction. Before the taking of testimony on the last petition, Mr. Beveridge, representative of the plaintiff Casualty Company, *Page 361 objected to reopening the case on the grounds that it was only a rehearing, and that, as a rehearing, it was not in time. Mr. Knerr, chairman of the commission, made the following statement:
"Let the record show that attached to the petition is a communication signed by Dr. S.C. Baldwin, wherein he gives a history of the case and his opinion as to the disability. The commission believes in this case, Mr. Beveridge, that the burden rests with the applicant to establish that there is a change in his condition since the award rendered by the commission of the 5th day of October, 1925. We feel that, in case he can establish that his condition has changed since the decision was rendered, the commission has continuing jurisdiction and may modify its former decision in accordance with the facts. We understand also that would apply also to the employer in case the commission rendered a decision awarding a certain number of weeks of permanent partial disability and during the term of payment of such compensation it should be established that his condition had changed and he was getting better and therefore had reduced the percentage of permanent partial disability. I am quite sure that the commission would be obliged to reopen this case and order an increase in the amount of compensation paid by defendant on the theory that reopening this case places the burden on the applicant himself to show that his condition has changed since the written decision was rendered."
So that, whatever may have been the evidence in the case, it is quite conclusive that the proceeding was had under the statute conferring continuing jurisdiction.
The nature of the injury and the purpose of the Hibbs operation are tersely stated in the findings. At the time of the hearings which resulted in the first award rendered October 5, 1925, the commission evidently was convinced by the testimony of the experts that the Hibbs operation, which had been performed in July, 1924, was reasonably successful, and that the joints affected would ankylose and complete union be effected within a few months thereafter. There was at such hearing testimony to the effect that it would require two years or more from the time of the operation for the joints to ankylose and become a solid bone. The commission, however, apparently assumed, in view of *Page 362 the evidence, that the result contemplated by the operation might be effected within 20 weeks from the date of the award, and therefore awarded applicant $16 per week for that period of time. In August, 1926, more than two years after the operation, X-ray pictures were taken of the injury and the effects of the operation, and there was substantial evidence to the effect that complete ankylosis had not been effected, especially between the second and third vertebrae. There is also substantial evidence to the effect that, where there is not complete ankylosis of the joints within the field of the operation, there may be pain and consequent disability to perform labor, especially labor which requires stooping and lifting; that, if there is movement between the joints, pain is likely to result. Consequently the purpose of the operation is to solidify the joints and eliminate movement.
As far as concerns actual change or development in the appearance of the injury, the expert witnesses found no change for the worse. But, as before stated, there is substantial evidence that the operation did not accomplish all that was expected. The applicant testified that his condition as to pain and suffering and inability to work was worse than it was before the first award.
We are not aware of any previous decision of the court exactly in point on the question presented here. Both plaintiffs and defendants agree upon the interpretation made by this court of the meaning and effect of the provisions of section 3144 hereinbefore quoted. They each, respectively, quote approvingly the following excerpt from the decision of this court in SaltLake City v. Ind. Comm., 61 Utah, 514, 215 P. 1047, wherein the court, referring to section 3144, says:
"It certainly was not intended by that section that the commission might resume jurisdiction of a case that had once been regularly determined without some change or new development in the injury complained of not known to the parties when the former award was made. It may often happen that some material change in the condition of applicant's injury may occur after an award has been made, *Page 363 in which justice to one or the other of the parties litigant might demand a further hearing of the cause. It might be thatwhat was supposed to be a serious and permanent injury for whicha large compensation was awarded would prove to be only slight ortemporary, in which case the compensation should be substantiallymodified or abrogated altogether; or it might be that the injurywould afterwards prove to be more serious than was supposed whenthe award was made, in which case the compensation should beincreased. There might be other reasons for the exercise ofjurisdiction under the statute last quoted which do not atpresent occur to the mind of the writer, but no reason whatever appears in the instant case."
When both sides, upon a hotly contested question, agree that a certain interpretation of a statute by this court was right, it will hardly be contended that the interpretation was radically wrong. It will be noted in the language employed the court did not attempt to definitely determine the limits of the commission's jurisdiction under the provisions of section 3144. The court did, however, attempt to interpret the statute as applied to the facts of that particular case and at the same time announce a rule that would be applied to all cases where the facts were substantially similar. The portion of the excerpt which we have italicized for convenience speaks for itself, and clearly indicates that section 3144 is susceptible of a reasonably broad interpretation, dependent upon the facts of the particular case. As stated by the late Mr. Justice Frick inAetna Life Insurance Co. v. Ind. Comm. (Utah) 252 P. at page 569, a case in many respects analogous to the case at bar:
"While the writer is firmly of the opinion that the rule laid down in Salt Lake City v. Industrial Commission, supra, should be adhered to, yet he is also convinced that section 3144 [supra] should receive a liberal construction and application where, as in this case, the jurisdictional facts are all established."
In the instant case the point is made by plaintiffs that the evidence fails to show any change in the condition of the applicant after the award of October 5, 1925, and prior to the hearing which resulted in the last award. *Page 364
The testimony of the applicant was that he was much worse, suffered more pain, and was less able to work. But, aside from his testimony on that subject, let us consider the case from another point of view. He was not able to work October 5, 1925, when the first award was made, and for that reason he was awarded 20 weeks compensation at $16 per week, evidently on the assumption that at the end of that period there would be such a change in his condition that he would be able to resume work. Now if no change resulted and his condition remained the same at the end of the 20 weeks, upon what theory can it be contended that the applicant is not entitled to further compensation? If his condition was such when the first award was made that he was unable to work, and his condition was the same when he made the last application, to what end was section 3144 enacted, if not to give relief in a case of this kind? We should bear in mind, in considering this case, that, when the first award was made, it was on the assumption that the Hibbs operation would accomplish its purpose, that the joints of the vertebrae in the field of the operation would unite, become a solid bone, and that the applicant, although hampered more or less by a stiff back would nevertheless be comparatively free from pain. The commission on the last hearing found that such was not the result and that his disability still continued. In other words, there was still a disability for which additional compensation should be allowed.
In Spring Canyon Coal Co. v. Ind. Comm., 57 Utah, 208,193 P. 821, the applicant lost his leg in the course of his employment and was supplied with an artificial limb. For such injury the statute (section 3138) allows a fixed sum, in the following language:
"For loss of * * * one leg at or above the knee where stump remains sufficient to permit the use of an artificial limb — 150 weeks."
The applicant applied for compensation for temporary disability and also for the permanent loss of his leg. The *Page 365 same was allowed by the commission. On application of the company the case was reviewed by this court. The award was annulled for the reason that the commission had no authority, in that case, to award compensation for temporary disability. The award for the loss of the limb was held valid. The decision was rendered in November, 1920. In September, 1922, the case again came before the commission under the provisions of section 3144, supra. It was found that the artificial limb did not effect the purpose intended. Applicant underwent two or three subsequent operations in order to get relief. In the meantime his disability continued. In these circumstances the commission awarded him further compensation. The company again brought the case to this court for review, 60 Utah 553, 210 P. 611. It was earnestly contended by the company that the first decision of the commission was the law of the case, and that the court was bound thereby. This contention was held untenable. The court, in the course of its opinion, at page 562, quoted the provisions of section 3144, and held that the case was a proper one for the exercise of jurisdiction by the commission as provided in that section. That case bears strong analogy to the case at bar. In that case it was supposed that an artificial limb would prove effectual. An award was made accordingly. The artificial limb failed to function, disability continued, and further compensation was allowed. In the instant case it was supposed that the Hibbs operation would effect the purposes intended. The commission found it did not effect such purpose, and that disability still continued; hence the award. In this connection we also refer to Aetna LifeInsurance Co. v. Ind. Comm., heretofore referred to in another connection. Without reviewing the case in detail, the writer is of opinion that the court went further in that case to uphold the award than is necessary to go in the instant case.
We are of opinion the commission had jurisdiction to make the award allowing additional compensation. *Page 366
Counsel for each of the parties have referred us to many cases in support of their respective contentions. While some of them are more or less in point, we have not deemed 2 it necessary to cite them here. The reporter will no doubt cite them in the caption of the published opinion.
There still remains the question presented by defendants' demurrer and motion to quash and dismiss the writ. The award was made January 18, 1927. At the same time an order was made to the effect that any party dissatisfied with the decision should, within 20 days, apply for a rehearing. The plaintiffs did not apply for a rehearing, but applied to this court for a writ of review.
Defendants contend that an application for rehearing before the commission, within the time fixed by the commission, is jurisdictional, and that without such 3 application this court has no jurisdiction to review the proceeding. Such contention seems to be clearly within the contemplation of the statute. The statute authorizing a review (Comp. Laws Utah 1917, § 3148, as amended in Sess. Laws 1919, at page 164) reads:
"Within thirty days after the application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on the rehearing, any party affected thereby may apply to the Supreme Court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original award or the award on rehearing inquired into and determined."
If there is any authority for applying to this court for a writ of review from an award of the Industrial Commission without first applying to the commission for a rehearing, we are not cognizant of the fact. We do not understand that plaintiffs contend otherwise. Their contention, if we understand it, is that what we have here held to be a proper proceeding under the provisions of section 3144, was in fact only a rehearing on the award of October 5, 1925, and that *Page 367 therefore no further rehearing was necessary to confer jurisdiction on the court.
While we do not recall any decision of the court in which this particular question has been determined, we nevertheless are of opinion that up to the present time there has been no review by this court of an award made by the commission under the provisions of section 3144, without application having first been made to the commission for a rehearing of the case. Every reason for a rehearing that exists in the case of an original award exists also in the case of an award made under section 3144. Under section 3144 there must be a changed condition or a development of some kind justifying a modification of the previous award, either in favor of or against the applicant. It is just as important that the commission should have an opportunity to review and reconsider its findings as to such new conditions, in order to confer jurisdiction on a reviewing court, as it is to review and consider its findings on the previous award in order to confer such jurisdiction. As stated by the Colorado Supreme Court, in Passini v. Ind. Comm. et al.,64 Colo. 352, 171 P. at page 371:
"The purpose of the act is to confine the settlement of compensation cases to the commission itself. * * * It is clear that the legislative intent was that the commission should be given an opportunity to review its own findings, before permitting claimants, or other dissatisfied persons, to resort to the courts."
The legislative intent, to the same effect, is equally clear under the Utah statute. No review is provided for except where there has been an application for a rehearing before the commission.
We are of opinion that in cases of this kind, as well as in cases of an original award, application for a rehearing within the time fixed by the commission is necessary to confer jurisdiction upon the court. It appearing that no such application was made by the plaintiff in the instant case before applying for a writ of review, the court is without *Page 368 jurisdiction to review the proceeding except for the purpose of determining whether the commission had jurisdiction.
The writ of review theretofore issued is therefore quashed, vacated, and set aside, and the award of the commission affirmed.
CHERRY, HANSEN, and GIDEON, JJ., concur.