# Watson v. Georgia-Pacific Corp. > Court of Appeals of Oregon · December 23, 1970 · 5 Or. App. 353 URL: https://www.frixlaw.com/law-library/cases/6918046 ## Case - **Full name:** WATSON v. GEORGIA-PACIFIC CORPORATION - **Court:** Court of Appeals of Oregon - **Decided:** December 23, 1970 - **Citations:** 5 Or. App. 353; 478 P.2d 431; 1970 Ore. App. LEXIS 385 - **Precedential status:** Published - **Opinion:** On rehearing by Langtry - **Judges:** Branchfieud, John, Langtry, Schwab - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6918046 ## Opinion text ON REHEARING Raymond J. Conboy, Portland, argned the cause for respondent on rehearing. John C. Warden, Judge. Argued and submitted April 23, 1971. Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, and Dan O’Leary, Portland. Jack Mattison, Eugene, argued the cause for respondent. With him on the brief were Jaqua, Wheatley & Gardner, and John E. Jaqua, Eugene. LANGTRY, J. These appeals concern a workmen’s compensation case. They bear the same title, parties, Workmen’s Compensation Board file number and circuit court file number. The first appeal is from a circuit court decision concerning claimant’s eligibility for compensation. The second concerns a contempt proceeding which grew out of the employer’s refusal to pay compensation while the first matter was on appeal. The first matter was heard by this court and decided favorably to the claimant. Watson v. Georgia-Pacific Corp., 5 Or App 353 , 478 P2d 431 (1970). We granted rehearing because several errors were made in the fact statement. They came about largely because the circuit court clerk and the clerk of this court did not distinguish between documents that belonged in one file or *359 the other, with a resultant mixing of them. This court did not detect the mixing of evidence as the former opinion was prepared. Now, we correct that opinion in the following particulars: The employer’s letter of refusal to pay compensation should have been identified as having been written on February 4, 1969, instead of October 14, 1969. Another refusal letter which precipitated the contempt case was written on October 14, 1969. The opinion referred to deposition testimony of Doctors Berg and Kloos. Their depositions were not introduced in the first proceeding. Dr. Berg’s reports, however, were in the first proceeding and were to much the same effect as his deposition testimony. The inference stated in our former opinion that the claimant was thrown to the floor of the bus in which he was riding when the accident occurred was drawn from deposition testimony given by Dr. Kloos, which should not have been part of that record. Without that testimony the evidence substantiates an inference only that claimant received a severe jolt to his back when the bus hit a hole in the road. Other claimed errors in the petition for rehearing are so unsubstantial that they do not merit mention. After reviewing the evidence that is properly in the record of the first case, we again come to our previous conclusion. The claimant had experienced repeated trauma over a period of many years before the injury which precipitated this claim and some of them affected his back. We think our former conclusion that he probably was going to experience new trauma which, when it occurred, would aggravate the previously existing back condition is correct. The subject accident did precipitate the onset of such symptoms. The *360 employer takes the employe as he is, and the accident caused compensable injury. At the same time as the rehearing argument, we heard the appeal of the contempt proceeding. On October 14, 1969, as we have already noted, the employer again rejected the claim. This was after the hearing officer had ordered payment and his order was on appeal to the Workmen’s Compensation Board. On October 16, 1969, the Board set aside the award made by the hearing officer and the claimant appealed to the circuit court, which reinstated the hearing officer’s award on December 16, 1969, and the employer appealed to this court. During the month of October 1969, while the appellate process went on, Dr. Berg performed surgery on the claimant’s back. A contempt proceeding, based upon the refusal to pay, was commenced and hearing was held in the circuit court on February 2, 1970. The employer still had not paid for the surgery or compensation. The circuit court refused to act in the contempt matter because the appeal had been taken. The circuit judge took the view that this appeal divested him of jurisdiction, and so ordered. Claimant appealed from that order and urges upon us OBS 656.313 (1), which provides: “Filing by an employer or the State Accident Insurance Fund of a request for review or court appeal shall not stay payment of compensation to a claimant.” The employer, on the other hand, argues the general rule that once an appeal and appropriate bond have been filed, a circuit court is without further jurisdiction over the cause except for certain powers in aid of the appeal process. We do not get to a decision of the legal ques *361 tion thus presented because we conclude that it is moot. Employer points out to us in his brief that under the provisions of ORS 656.283 and 656.382, a remedy is provided against a direct responsibility employer who refuses to pay compensation due under an order of hearing officer, board, or a court, and that when that remedy was brought into play by the claimant in this case the employer did make full payment of all compensation due claimant by reason of the orders of the circuit court. The hearing on the latter remedy was held on February 5, 1970, three days after the hearing in the contempt matter. Exhibits to employer’s brief set out the order of March 4, 1970, and amended order of April 24, 1970, entered by the hearing officer. The hearing officer’s order assessed a 25 per cent penalty against the employer for unreasonable delay and refusal in payment of compensation. Attorney fees were also assessed against the employer. Employer states that while the evidence of payment is not a part of the record, the sums required have been paid. Claimant conceded this in oral argument. We agree with the employer that payment makes the matter moot. As we have indicated above, we adhere to our former opinion on the question of compensability. With reference to the contempt, the appeal is dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6918046. Public record. Not legal advice.