Opinion

Dodd v. State Industrial Accident Commission

  • 211 Or. 99
  • 315 P.2d 138
  • 310 P.2d 324
  • 1957 Ore. LEXIS 250
Court
Oregon Supreme Court
Filed
May 1, 1957
Status
Published
Author
Lusk
On the bench
Lusk
Cited by
14 cases
Authority
More cited than 11.2%

The opinion

On Appellant’s Petition por Rehearing

LUSK, J.

In a petition for rehearing the plaintiff contends that we erroneously held that the aggravation provisions of the Workmen’s Compensation Law are not applicable to claims under the Occupational Disease *109 Law. The contention is based on OES 656.804 (1), which reads:

“An occupational disease, as defined in OES 656.802, is considered an injury for employes of employers who have come under the [sic] OES 656.002 to 656.590 [the Workmen’s Compensation Law], except as otherwise provided in OES 656.802 to 656.824 [the Occupational Disease Law].”

It is argued that the effect of this section is to incorporate into the Occupational Disease Law all the rights given a workman by the Workmen’s Compensation Law unless “otherwise provided” in the Occupational Disease Law, and that the latter statute contains no provisions inconsistent with the application to it of the aggravation provisions of the Workmen’s Compensation Law.

We acknowledge the force of the argument, and are persuaded by it that we should withdraw all language in our former opinion which indicates a contrary view. We leave the question undecided, however, as, in any aspect of the case, our holding that the circuit court was without jurisdiction of the attempted appeal from the decisions of the Workmen’s Compensation Commission must be adhered to.

If we assume that the plaintiff had the right to file a claim for aggravation of an occupational disease, and if (as counsel for plaintiff would have us do) we should treat the claim for aggravation filed by the plaintiff as one for aggravation of an occupational disease, rather than of an accidental injury, as he protested that it was, still the plaintiff’s effort to invoke the appeal provisions of the Workmen’s Compensation Law avails him nothing. For, if the plaintiff had a right to file a claim for aggravation of an occupational disease, his only appeal from an order of the commis *110 sion denying such a claim was to a medical board of review (OES 656.810 to 656.814, both inclusive) and he took no such appeal. If these provisions for appeal to a medical board of review are unconstitutional, as the plaintiff contends, then the entire statute would fall, for, if it were held that they are severable from the rest of the statute, the result, under the argument of the plaintiff based on OES 656.804 (1), would be that the appeal provisions of the Workmen’s Compensation Law would then be incorporated in the Occupational Disease Law. The question of severability of constitutional and unconstitutional provisions of a statute is primarily one of legislative intent. Fullerton v. Lamm, 177 Or 655, 697 , 163 P2d 941 , 165 P2d 63 . Nothing could be clearer than that the legislature did not intend that a dissatisfied claimant under the Occupational Disease Law should have a right of appeal from an order of the commission to the circuit court, with a jury trial de novo.

The petition for rehearing is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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