Summary
In State v. State Industrial Acc. Com., 115 Or. 484, 487, 237 P. 680 (1925), the Supreme Court held that "[t]he dependents of the injured workman must be determined as of the date of the injury."
Summary of this case from Jackson v. Bogart ConstructionOpinion
Argued May 19, 1925
Writ denied July 14, 1925 Rehearing denied September 15, 1925
Original proceedings in mandamus.
For plaintiff there was a brief and oral argument by Mr. Joseph A. Benjamin and Mr. Milo C. King.
For defendants there was a brief over the name of Mr. I.H. Van Winkle, Attorney General, and Mr. Miles H. McKey, Assistant Attorney General, with an oral argument by Mr. McKey.
This is a mandamus proceeding wherein the plaintiff seeks to require the defendants to obey the judgment of the Circuit Court for Clackamas County, entered on mandate from this court: Meaney v. State Industrial Acc. Com., 113 Or. 371 ( 232 P. 789). The defendants, appearing by the Attorney General, demurred to the writ on the ground that the plaintiff seeks to mandamus a public office; to control the discretion of public officers; and that the plaintiff has a plain, speedy and adequate remedy at law. The questions to be determined upon the merits of the writ are two, namely: First, the amount that should be allowed plaintiff, based upon the time for computing that amount; and, second, based upon the number of children to be considered in the computation.
The injury occurred on the first day of April, 1915. Since that time three children have been born to the plaintiff and his wife. The judgment involved is based upon an appeal from the final action of the Industrial Accident Commission in refusing to reinstate the plaintiff upon the pay-roll of the Commission. For further particulars of the facts see Meaney v. State Industrial Acc. Com., above.
WRIT DENIED. REHEARING DENIED.
In our opinion the State Industrial Accident Commission has no discretion in this matter. The direction of the judgment of the court required the Commission to reinstate the plaintiff under the Workmen's Compensation Act, as amended; to fix the amount of plaintiff's compensation on the basis of permanent total disability in accordance with the schedule of said act as amended; to compute the full balance of unpaid compensation accrued and accruing to the plaintiff from the date of the injury. It is the duty of the Industrial Accident Commission to faithfully execute the judgment. There is no room for the exercise of discretion.
The plaintiff does not have an adequate remedy at law. All matters of fact and law, except that of fixing the compensation, have been determined and another appeal would be an idle ceremony. The matter now before the court, presented by the writ of mandamus, is simply to fix the compensation in accordance with the judgment duly rendered.
The writ is not necessarily issued to the office but to the members of the Commission, directing them to perform their statutory duty.
In our opinion the case presented is a proper one for this court to exercise its original jurisdiction.
Section 6632, subdivision (c), Oregon Laws, provides:
"If change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor. No increase or rearrangement shall be operative for any period prior to application therefor."
In this case there was a judgment for a rearrangement, based upon an application, made on May 17, 1923. Under the law, therefore, the Commission is not authorized to make any compensation to the plaintiff prior to the last-named date. The Commission is strictly complying with the judgment involved by computing the compensation accrued and accruing to the plaintiff from and after that date. The plaintiff seeks to have the compensation theretofore allowed and paid rearranged and a large sum, in excess of the amount theretofore paid, allowed to the plaintiff. This the statute forbids. A proper construction of the judgment involved does not require the Commission to do that. The judgment itself requires the compensation to be made in accordance with the schedule as fixed by the statute. The judgment must be construed, if possible, in accordance with the law. As we have seen, the law does not permit compensation to be made because of changed circumstances, or a rearrangement to antedate the application made therefor.
As a general rule the compensation is fixed as of the date the injury was received. The dependents of the injured workman must be determined as of the date of the injury; 1 Schneider, Workmen's Compensation Law, 898, and cases cited under notes 58, 928, and cases cited under note 67. We believe that to be the proper construction of our statute. Section 6619, subheading "Child," in page 2646, Oregon Laws, provides:
"The word `child' as used in the act, includes a posthumus child, a child legally adopted prior to the injury, an illegitimate child legitimated prior to the injury, and a stepson or stepdaughter."
Section 6626, subdivision 3, in page 2653, Or. L., provides that if the workman have a wife or husband, or a child or children under the age of sixteen years, the monthly payment provided in the preceding paragraph shall be increased, etc. This language would indicate that the workman should have the child at the date of the injury, not that he should have it at some future date. Subdivision (g) of the same section, in page 2655, provides for adjustment of compensation with development of the injury or death of the workman, and for a reserve to guarantee monthly payments by segregating an accident fund, and its investment. If the conclusion contended for by the plaintiff were correct the Commission could not accurately fix such a fund for the reason that the number of children would not be known. This subdivision of the section, with the other parts of the act referred to here, seems to us clearly to indicate the intention of the legislature to fix the compensation so far as the dependents are concerned as of the date of the injury.
We conclude, therefore, that the Commission has literally obeyed the judgment of the Circuit Court in fixing the compensation as it has. For that reason the petition for a peremptory writ is denied and the petition dismissed.
WRIT DENIED. REHEARING DENIED.