That case in no way conflicts with the right of the Industrial Commission to exercise its judicial discretion reasonably within the statutory bounds. A reading of Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22, indicates a similarity of facts with the instant case. This court held in the Rehak case that the mere fact that medical experts expressed divergent opinions as to the cause of disability in a workmen's compensation case does not obligate the commission to open the case and appoint a neutral physician.
Where the medical evidence is in dispute, it is for the commission to resolve the dispute the same as upon an original hearing. Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22; Bomersine v. Armour Co. 225 Minn. 157, 30 N.W.2d 526. See, also, Ness v. National Iron Co. 249 Minn. 475, 82 N.W.2d 688. (In that case we held that the power to rerefer the claim to the referee prior to a final decision by the commission was similar to the power to reopen a case under this statutory provision and that its exercise was subject to the discretion of the commission.)
Smith v. Independent Silo Co. 169 Minn. 96, 210 N.W. 624; Cooper v. Mitchell, 188 Minn. 560, 247 N.W. 805. 5. Likewise, where conflicting medical opinions were submitted upon a motion to vacate an award, we have held that the commission's refusal to do so did not constitute an abuse of discretion. Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22. 6. On the other hand, we have frequently held that where the new evidence presented in support of a motion to vacate a prior award is undisputed and indicates that the injured employe has suffered substantial additional disability following the award it is an abuse of discretion on the part of the commission to refuse to vacate such prior award.
Setting aside an award or a settlement evidenced by a final receipt and granting a new hearing lies in the discretion of the commission, and where the commission denies an application by an employe for such relief the employer cannot be held liable for further compensation. Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22. Hence, not only the further liability in any case, but the extent and amount of it, is contingent on an award being made by the commission in the exercise of its discretion to grant a rehearing. Not only is it discretionary to set aside an award or settlement evidenced by a final receipt, but so is it as to the making of a new award upon rehearing, because it involves deciding by forming an estimate of the percentage of the disability sustained by the employe.
In reaching this conclusion, we have been aided and guided by the cases already cited. In addition, the following are deemed helpful: Rehak v. St. Paul Terminal Warehouse Co. 206 Minn. 96, 288 N.W. 22; Budd v. C. Thomas Stores Sales System, Inc. 209 Minn. 490, 296 N.W. 571; Schultz v. U.S. Bedding Co. 210 Minn. 68, 297 N.W. 351; Cavilla v. Northern States Power Co. 213 Minn. 331, 6 N.W.2d 812. 4. Petitioner asserts reversible error in the commission's interpretation and application of its Rule 12, which limits the number of medical witnesses to be called and heard in compensation cases.
In its former opinion, after commenting on the medical testimony, this court said ( 213 Minn. 38, 4 N.W. [2d] 771): "If we were to disregard the findings of Dr. Love, who operated on relator's back in March 1940, we should be compelled to hold that the conclusions of the commission were final, in view of the conflict in the opinions of the medical men as to the nature and extent of relator's injury. Rehak v. St. Paul T. W. Co. 206 Minn. 96, 288 N.W. 22; Ogrosky v. Commonwealth Elec. Co. 172 Minn. 46, 214 N.W. 765; Delich v. Thompson-Starret Co. 175 Minn. 612, 220 N.W. 408. But it seems to us that the commission failed to give due significance to the findings of Dr. Love. He may have been of the opinion that relator 'reacted untowardly to a relatively minor injury,' but he definitely found evidence of injury which he attributed to the accident." On that basis, this court determined that a rehearing should be had. As to the medical testimony contained in the record on the rehearing, we reiterate what was said in our first opinion, namely, that, disregarding the testimony of Dr. Love, "we should be compelled to hold that the conclusions of the commission were final, in view of the conflict in the opinions of the medical men as to the nature and extent of relator's injury."
Dr. Allison X-rayed him on a number of occasions and found no evidence of a trauma to the spine or elsewhere. Dr. Hannah was of the opinion that relator's disability was of a functional nature. If we were to disregard the findings of Dr. Love, who operated on relator's back in March 1940, we should be compelled to hold that the conclusions of the commission were final, in view of the conflict in the opinions of the medical men as to the nature and extent of relator's injury. Rehak v. St. Paul T. W. Co. 206 Minn. 96, 288 N.W. 22; Ogrosky v. Commonwealth Elec. Co. 172 Minn. 46, 214 N.W. 765; Delich v. Thompson-Starret Co. 175 Minn. 612, 220 N.W. 408. But it seems to us that the commission failed to give due significance to the findings of Dr. Love. He may have been of the opinion that relator "reacted untowardly to a relatively minor injury," but he definitely found evidence of injury which he attributed to the accident. It must be remembered that no medical testimony was presented to the referee at the original hearing.