The opinion
On Appellant’s Second Petition por Rehearing
LUSK, J.
Although no rule of this court provides for a second petition for rehearing, we permitted the filing *112 of this petition because it pointed out an oversight on our part in our opinion denying the first petition for a rehearing. We there said that the sections of the Occupational Disease Law granting to a dissatisfied claimant an appeal to a medical board, whose findings are made final and binding, are not severable from the remainder of the statute, so that, if these sections were to be held unconstitutional, the entire enactment would fall. Counsel for the plaintiff now call our attention to § 13 of Oregon Laws 1943, ch 442, the Occupational Disease Law as it was originally enacted. Section 13 reads:
“If any section, sentence, clause or word of this act shall be held to be unconstitutional, the validity [invalidity] of such section, sentence, clause or word shall not affect the validity of any other portion of this act, it being the intent of this legislative assembly to enact the remainder of this act, notwithstanding such part so declared unconstitutional should or may be so declared.”
The foregoing provision was in effect at the time plaintiff filed his claim with the commission in 1951, and at the time that he took his attempted appeal by filing a complaint in the circuit court on June 16, 1953. But it was not in effect at the time this case was heard and decided in the circuit court in January 1956. It ceased to be a part of the Occupational Disease Law when Oregon Revised Statutes became effective on August 3, 1955, for it was omitted from the revision. See ORS 656.802-656.990. There is, however, a general severability statute which, since the effective date of ORS, has been applicable to the Occupational Disease Law. This is ORS 174.040 (Oregon Laws 1951, ch 314, § 4), which reads:
“It shall be considered that it is the legislative intent, in the enactment of any statute, that if any *113 part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
“(1) The statute provides otherwise;
“(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
“(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.”
In Gilbertson v. Culinary Alliance, 204 Or 326, 353 , 282 P2d 632 , we said of this section, “Substantially, these are the same rules applied by the courts in the absence of statute.” To this statement was cited Fullerton v. Lamm, 177 Or 655, 697 , 163 P2d 941 , 165 P2d 63 , which was also cited in our opinion denying the first petition for rehearing.
Further consideration of the question of severability in the light of this change in the statute leads us to the conclusion that no opinion upon this subject should be expressed at this time. Section 13 and ORS 174.040 appear not to mean precisely the same thing, and a question would be presented as to which of the two statutes governs this case, because the claim arose when the former was in effect, but was still undetermined at the time that the latter became applicable to the Occupational Disease Law. We therefore withdraw the statement that the review provisions of the law are not severable.
We remain of the opinion, however, that the case was properly decided and that, notwithstanding counsel’s insistence to the contrary, we should not now pass upon the constitutionality of the review provisions of the Occupational Disease Law. Constitutional questions will not ordinarily be determined by this court *114 unless their determination is essential to the disposition of the ease. State ex rel Bushman v. Vandenberg, 203 Or 326, 329 , 276 P2d 432 , 280 P2d 344 .
This case was not commenced in the circuit court as a proceeding under the Occupational Disease Law, hut as an attempted appeal from a decision of the State Industrial Accident Commission denying plaintiff’s claim for compensation for “an injury by accident within the meaning of the Workmen’s Compensation Law” (plaintiff’s complaint, paragraph V). The commission twice refused to allow plaintiff’s claim for compensation for an alleged accidental injury, and instead awarded him compensation for an occupational disease, and he accepted the award. He let the time go by in which to appeal from the commission’s refusal to allow his claim for accidental injury. More than a year after the final award for compensation for occupational disease the plaintiff attempted to revive his claim for accidental injury by filing a claim for aggravation of such alleged injury. As the authorities cited in our original opinion hold, no such remedy was available to the plaintiff because the commission had never made an award or allowed his claim for accidental injury. Hence, when the commission rejected a claim for aggravation and he filed his petition for a rehearing under the statute, and that petition was denied, his effort to appeal to the circuit court was futile. His petition for aggravation was such in name only and could not be the basis of any further procedural rights. As we said in Iwanicki v. State Industrial Acc. Com., 104 Or 650, 658 , 205 P 990 , 29 ALR 682 :
“* * # In order, therefore, for the claimant to obtain an increase or rearrangement of compensation he must make an application and show some *115 change of circumstances which would warrant the desired increase.
“It is not contemplated by the statute that a new trial shall be granted and the case reopened before the commission on the old application.”
That precisely is what the plaintiff sought by his petition for aggravation. To have prevailed in that course he must have persuaded the commission that it was wrong in disallowing his claim for accidental injury. The statute gives the commission no such jurisdiction when acting upon a petition for aggravation. “Jurisdiction necessarily implies the right to decide finally a question properly presented, subject, of course, to the right of appeal. But when this right of appeal is lost by a lapse of time, the very essence of the term ‘jurisdiction’ means that the decision by virtue of it has become fixed and not appealable.” Iwanicki v. State Industrial Acc. Com. at 659.
The short of the matter is that this is a proceeding under the Workmen’s Compensation Law and not under the Occupational Disease Law, and the question of the constitutionality of the latter, in whole or in part, is beside the point. The basis for a petition for aggravation of an accidental injury was completely lacking, and we adhere to our holding that the circuit court was without jurisdiction of the attempted appeal and was right in dismissing it.
The second petition for rehearing is denied.