Sahnow v. FIREMAN'S FUND INSURANCE COMPANY

MoALLISTER, J.,

dissenting.

This is a relatively simple workmen’s compensation case in which the Court of Appeals, by focusing its attention on a harmless procedural error in the circuit court, failed to rule on the only issue of importance to the parties and erroneously remanded the ease for further unnecessary proceedings. This court now affirms the Court of Appeals instead of finally disposing of the case as I believe we can and should do.

I agree that the circuit court erred when it permitted Dr. Rogers to testify instead of remanding the case to the hearing officer for the taking of the additional testimony. Before deciding to remand the case, however, the Court of Appeals should have determined whether the circuit court’s error was prejudicial to either party. I am convinced that it was not. Dr. Rogers’ testimony was heard at plaintiff’s request, and she has not complained about the state of the record. Although defendants have argued that the testimony should not have been received at all, they have not contended that they were harmed because it was heard *571 by the circuit court instead of by the hearing officer. When the Court of Appeals decided that Dr. Rogers’ testimony ought to be part of the record it could have, without prejudice to either party, decided the ease on the entire record before it instead of ordering the ease remanded for the taking of the same testimony before the hearing officer. And, instead of affirming that remand order, this court should have decided the case on its merits and put an end to this protracted controversy.

It is true that neither party asked this court for a determination on the merits. Nevertheless, the case is ripe for a final decision and I believe this court has the authority to decide it, an authority which neither litigant can frustrate by procedural devices.

It is well established that both the right of appeal and the extent of that right are determined by the applicable statutes. Logsdon v. State and Dell, 234 Or 66, 70 , 380 P2d 111 (1963); Inland Nav. Co. v. Chambers et al, 202 Or 339, 350 , 274 P2d 104 (1954); Cohn v. State Tax Commission, 118 Or 92, 95 , 245 P 1085 (1926). In Inland Nav. Co. v. Chambers it was held that the circuit court’s power of review in tax assessment cases was limited by statute to certain issues. The applicable statute specified both the issues the circuit court was to consider and the dispositions which it could make depending upon its findings. See 202 Or at 349 .

In the workmen’s compensation statutes, on the other hand, the legislature evidently intended to provide for a review as broad as possible. Circuit court review is described in ORS 656.298 (6):

“The circuit court review shall be by a judge, without a jury, on the entire record forwarded by the board. The judge may remand the case to the *572 hearing officer for further evidence taking, correction or other necessary action. * * * The judge may affirm, reverse, modify or supplement the order appealed from, and make such disposition of the case as the judge determines to be appropriate.”

The appeal from the judgment of the circuit court is provided for in QRS 656.301, which says that the scope of review on appeal is to be the same as that of the circuit court. In Coday v. Willamette Tug & Barge, 250 Or 39, 44 , 440 P2d 224 (1968), we held that a party appealing from the determination of the circuit court was entitled to a de novo review based on the entire record. It is clear from the language of QRS 656.298 (6), especially the last sentence, that appellate courts in compensation cases not only reexamine the evidence, as was decided in Coday , but also have a power of disposition which was intended to be as broad as possible. This power of disposition is not limited by the issues as framed in lower tribunals or by the contentions made by the parties.

The provision for extremely broad powers on appeal is entirely consistent with the rest of the statutory scheme. The compensation statutes do not require pleadings in the usual sense at any level. QRS 656.283 (2); 656.295 (2). In the circuit court, the notice of appeal need include only “a brief statement of the relief requested and the reasons the relief should be granted.” ORS 656.298 (3) (d). No statement of points or assignments of error are required. At the hearing officer level, where most of the evidence is taken, rules of evidence and procedure are relaxed; the hearing officer is authorized to “conduct the hearing in any manner that will achieve substantial justice.” ORS 656.283 (6). A review by the board is based on the record made before the hearing officer; like the cir *573 cuit court, the board may “affirm, reverse, modify or supplement the order of the hearing officer and make such disposition of the case as it determines to be appropriate.” OKS 656.295 (6).

I think it clear that the legislature intended that each case would be at large for appropriate determination at every stage of the review proceedings. It directed each reviewing agency and court to dispose of the case in an appropriate manner based on the entire record before it.

There is an apparent inconsistency between this interpretation of the review provisions of the compensation statutes and OKS 2.520 (5), which provides:

“* * * review by the Supreme Court is limited to those errors asserted in the petition for rehearing in the Court of Appeals, unless the Supreme Court shall take notice of plain error apparent on the face of the record.”

To the extent that OKS 2.520 (5) is inconsistent with the review provisions of the compensation statutes as I would interpret them, I think the latter should be given effect. The compensation statutes deal with a particular class of cases with a unique procedural structure; they should control over the more general provisions of OKS 2.520 (5). It is my opinion that regardless of the points raised in the petition for rehearing in the Court of Appeals, we have the power to determine the merits of compensation cases whenever we deem such a determination appropriate.

The majority holds that we may limit our scope of review in these cases, adopting the reasoning of the dissenting opinion in Surratt v. Gunderson Bros., 259 Or 65 , 485 P2d 410 (1971). According to that reason-, ing, we are “at liberty to fix the scope of our review of *574 workmen’s compensation cases” because no statute specifically prescribes tbe scope of our review of decisions of tbe Court of Appeals. OES 2.520 (5) provides:

“After the Supreme Court allows a petition for review, such further proceedings shall be had as the Supreme Court by rule may provide. * * *”

The majority opinion implies that this statute gives us the power to prescribe the scope of our review. I do not believe it was so intended by the legislature. The “proceedings” to which the statute refers I take to be those over which we have traditionally exercised rule-making power — such matters as the filing of documents with this court, the preparation of briefs, and the conduct of oral argument. If the legislature had intended to grant the power to determine by rule the scope of review, it would surely have chosen plainer language. In the absence of a clear provision for such power, we should look to the relevant statutes governing appeals to find the scope of our review in particular cases.

It should be pointed out that the reasoning adopted by the majority applies to other cases as well as to compensation proceedings. For example, OES 19.125 (3) provides:

“Upon an appeal from a decree in a suit in equity, the cause shall be tried anew upon the record.”

When an equity case is within the jurisdiction of the Court of Appeals, the appeal from the decree, strictly speaking, is to that court. According to the majority’s reasoning, it would follow that the scope of our review in equity cases which come to us through the Court *575 of Appeals could be determined by this court, and that OES 19.125 (3) would not govern our review.

It is my opinion that until the legislature prescribes otherwise, review of workmen’s compensation cases in this court is properly de novo on the record, as is the review in the Court of Aj)peals. We should have decided the merits of this case on the record before us, including Dr. Eogers’ testimony. I dissent from the majority’s disposition of the case, which affirms the Court of Appeals’ remand order sending the case back to the hearing officer for the reception of the same evidence which has been a part of the record before both that court and this one.

Holman, J., joins in this dissent.