# Surratt v. Gunderson Bros. Engineering Corp.

> Oregon Supreme Court · May 26, 1971 · 259 Or. 65

URL: https://www.frixlaw.com/law-library/cases/9791758

## Case

- **Full name:** SURRATT, Petitioner, v. GUNDERSON BROS. ENGINEERING CORP., Respondent
- **Court:** Oregon Supreme Court
- **Decided:** May 26, 1971
- **Citations:** 259 Or. 65; 485 P.2d 410; 1971 Ore. LEXIS 356
- **Precedential status:** Published
- **Opinion:** Concurring in part by Denecke
- **Judges:** McAllistee, O'Connell, McAllister, Denecke, Holman, Howell, Bryson, Beyson
- **Cited by:** 35 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/9791758

## How later opinions describe it (automated extraction)

- holding that both unscheduled and scheduled permanent disability awards “relate to loss of earning capacity” (internal quotes omitted)

## Opinion text

DENECKE, J.,
concurring in part; dissenting in part.
I concur in the opinion of Mr. Justice Hot,-man except for that part of the majority opinion which makes a de novo review of the evidence of the extent of disability. I dissent from that part of the opinion.
In Coday v. Willamette Tug & Barge, 250 Or 39, 44 , 440 P2d 224 (1968), decided before the creation of the Court of Appeals, we held that upon appeal to the Supreme Court from the circuit court we were required by statute to give a de novo review. We indicated that we did not favor that scope of review; however, in view of the wording of the statute we had no choice.
The question now is whether this court is also compelled by statute to grant a de novo review when the case is before us, not on appeal from the circuit court as it was in Coday , but because we have granted a petition for review of a decision of the Court of Appeals.
Coday held that CBS 656.301 (1) required that we hear de novo an appeal from the circuit court. The statute provides: “Appeals may be taken from the judgment of the circuit court, the scope of review to be the same as that of the circuit court.” We construed the statute to require the circuit court to give a de novo review.
The statute applied in Coday applies to “appeals from the judgment of the circuit court * * ®.” The proceeding before this court upon granting a petition for review from the Court of Appeals is not literally *82 an appeal from a judgment of the circuit court. The appeal from the judgment of the circuit court in ■workmen’s compensation cases is now to the Court of Appeals.
The statutes concerning the Court of Appeals and concerning workmen’s compensation are silent on the scope of review of the decisions of the Court of Appeals by the Supreme Court. The only section of the statute creating the Court of Appeals which deals with review by the Supreme Court of Court of Appeals’ decisions is OES 2.520. Subsection (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. However, 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.”
This court has not made any rule on the scope of review.
In view of the fact that the statute is silent concerning the scope of review by this court of Court of Appeals’ decisions, I am of the opinion that it is reasonable to hold that we are at liberty to fix the scope of our review of workmen’s compensation cases.
6. Hannan v. Good Samaritan Hospital, 4 Or App 178 , 471 P2d 831 (1970), well states the inefficiency and uselessness of the present procedure which provides for three de novo trials on the record through the Court of Appeals and four if this court hears the matter de novo. Hnder such circumstances this court should adopt the rule that we will not review de novo *83 workmen’s compensation cases coming up from the Court of Appeals.
O’Connell, C. J., joins in this dissenting opinion.
BEYSON, J., dissenting in part.
I join in the partial dissent of Mr. Justice Denecke.
The course of a claim under the Workmen’s Compensation Act through the administrative level and then the courts is becoming preposterous.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9791758. Public record. Not legal advice.