The opinion
On Rehearing.
Appellee, in its motion for rehearing, makes a very serious challenge of the correctness of our decision by pointing out that, under the law as we have construed it, it would be impossible in some cases to determine from the claim passed upon by the Industrial Accident Board what court would have jurisdiction to hear a contest of the award and to adjudge compensation. It is suggested by way *904 of illustration that, had the employee lost his fourth finger (for which the maximum compensation allowed is $300), and had filed his claim stating: “Claimant also sustained other painful burns and permanent scars; however, he only places claim for the specific injury of ihe loss of Ms fourth finger,” in such i case only the county court would have had jurisdiction and certainly could not have awarded recovery to cover additional injury, as in this case. It must be conceded that, under present decisions, if such had been the case, the employee could not have extended his claim in court beyond that which was before the board, as has been permitted in this case. But to treat this fact as a sufficient reason to deny such extension of the claim would, we think, bring us in direct conflict with the decisions cited, and under the authority of which, such extension has been allowed, and unnecessarily so.
The real question presented is probably one of waiver. No waiver was alleged nor adjudicated, and we have not regarded such a question as being involved in the case. We are not disposed now to consider that question and undertake to dispose of the case upon that theory, involving as it would a question of the necessity of pleading the waiver, and whether, if it should be determined that it arose as a matter of law without such pleading, it in fact constituted a waiver. The question would be purely one of waiver and not of estoppel, for, so far as the record suggests, appellee is in no worse position than if the employee had merely claimed before the board the loss of his eye without any mention of the other injuries, in which case, certainly, we think, under the authorities, there would have been no obstacle to his enlarging the claim in court so as to include the additional extent of the injury.
Anything we may say on the jurisdictional question thus raised by way of argument against the correctness of our holding would, of course, be simply dictum unless we should sustain the motion upon that ground. It may not be amiss to say, however, merely ¡by way of showing that there is no insuperable objection to the validity of our conclusions, that the supposed case but suggests a possible defect in the law itself. If, for example, the Constitution requires that a claim for the loss of the fourth finger be brought in the county court, then, of course, it would have to be brought there, and if the effect of doing so would be to deprive the injured employee of compensation for a part of his injury, that result would simply follow from the failure of the law to make adequate provision for recovery, under the particular facts, for the full extent of the injury. The insurer in all cases could, no doubt, bring its suit in a court having jurisdiction of the máximum amount of the claim that could have been allowed by the board, even if the effect thereof would ¡be, because of the lack of jurisdictional authority of the court, to deprive the employee of compensation for a part of the injury. On . the other hand, we see no reason why, if, at the time required to contest the award, other manifestations of the injury than those considered by the ¡board had developed so as to justify recovery of a larger maximum amount as compensation, the employee could not file his case in a court having jurisdiction according to the pleadings, even though that court would not have had jurisdiction of the claim as it appears when presented to the board. If it should result that the insurer files suit to set aside the award in one court and the employee in another, then in the absence of a challenge of the good faith of the employee’s suit, the other could be safely abandoned. These suggestions are nob made to be regarded as an authoritative decision of these questions, but, as we have said before, merely to show that the jurisdictional question presents no insuperable barrier to the validity of our conclusions set forth in the original opinion.
We are therefore of opinion that the motion for rehearing should be overruled, which is accordingly so ordered.