Union Indemnity Co. v. Saling , 166 Okla. 133 ( 1933 )

On the 19th day of September, 1933, this court filed its opinion, delivered by Mr. Justice Busby, in the above-styled cause. This opinion is supplemental to the original and is entered for the purpose of clarifying an issue raised by the petition for rehearing. We will state only such facts as are necessary to the present treatment.

It appears that petitioner, Union Indemnity Company, was surety on a supersedeas bond used by employer and insurance carrier for the purpose of obtaining a review of an award of the State Industrial Commission in favor of Monroe Saling, claimant before the Commission, for temporary total disability, and executed and conditioned as required by section 13363, O. S. 1931. The award was affirmed by this court, and thereafter the Commission discharged the surety, Union Indemnity Company. About a year later, on motion of claimant, the Commission made an award to him for permanent total disability. At the same time it made an order against the Union Indemnity Company binding it to pay the sums due claimant on account of his permanent total disability to the extent of the maximum set in the bond. This order was entered on March 23, 1932. No pleading sought the order, the Union Indemnity Company was not notified of the hearing, and no copy of the order was sent to it. On April 21, 1932, petitioner filed a motion before the Commission to vacate this order. On June 17, 1932, the Commission entered its order overruling the motion. The present proceeding to review was instituted in this court on July 15, 1932.

In the cases of Sandoma Petroleum Co. v. Tow, 90 Okla. 276,217 P. 412, Knowles v. Whitehead Oil Co., 121 Okla. 55,247 P. 653, and Oklahoma Pipe Line Co. v. State Industrial Commission,149 Okla. 162, 299 P. 180, this court held that a petition to review must be filed in this court within 30 days after notice of an award has been sent to the parties affected, and that the time cannot be extended by filing a petition to rehear before the Commission. The original opinion in this case holds, and we think correctly, that the purpose of the law is to advise the parties affected by an award of the fact that it has been made and of the nature and effect thereof, and that, therefore, when the motion to vacate the award of March 23, 1932, was filed in the present case on April 21, 1932, the purposes of the notice were served and the time began to run. The original opinion further holds that the award of March 23, 1932, was in excess of the Commission's jurisdiction, and void, and that the "rules defining and declaring the time within which an award may be vacated by the Industrial Commission and limiting the time within which proceedings may be instituted in this court to review the same, * * * have no application to an order which is wholly void. * * *" It passes upon the validity of the Commission's award without more clearly showing how this court obtained jurisdiction. Respondent contends, in effect, that if the 30 days' time within which to file a petition for review began to run on April 21, 1932, and the motion then filed to vacate did not have the effect of extending the time, no proceeding was instituted in this court within the time required to give this court jurisdiction of the cause, whether the award was void or not. This is the point which we think needs clarification.

It will be noted that the petition to review was instituted within 30 days after the Commission entered its order overruling petitioner's motion to vacate. If that motion was an authorized and proper proceeding before the Commission for the purpose of striking and setting aside its award of March 23, 1932, then it was itself, together with the issues raised therein, subject to review in this court. It is apparent from the cases cited above that therein the Commission passed upon and adjudicated the issues sought to be reviewed. When the Commission has done so, its award, under those decisions, becomes final unless review is commenced within the 30-day period, and no proceeding is provided for in the Workmen's Compensation Law whereby such time may be extended. However, these decisions must be taken in connection with the decisions of this court construing section 13391, O. S. 1931, dealing with the continuing jurisdiction of the Commission.

In the cases of Sun Coal Co. v. State Industrial Commission,84 Okla. 164, 203 P. 1042, and United States Fidelity Casualty Co. v. Harrison, 125 Okla. 90, 256 P. 752, this court held that where an award is made for one injury, a further award can be made for an independent injury arising out of the same accident without a change in conditions. The same authority exists where the Commission makes an award for temporary disability and later determines permanent disability. Thompson v. State Industrial Commission, 138 Okla. 166,280 P. 597; Geis Price Grain Co. v. Bailey, 155 Okla. 302,9 P.2d 424. In Southern Drilling Co. v. Daley, 166 Okla. 33,25 P.2d 1082, we showed that physical condition is finally adjudicated only so far as it is then subject to adjudication.

From these cases it is apparent that the State Industrial Commission is invested with jurisdiction of a cause before it continuing so long as an issue relevant thereto remains to be adjudicated, but when an issue is adjudicated, that particular matter, and that only, together with all matters necessarily adjudicated thereby, becomes final following the 30-day period provided in the act, and thereafter the Commission is without jurisdiction to change its holding on that issue.

The foregoing cases, however, deal with causes within the jurisdiction of the Commission and action unquestionably authorized. In Tulsa Terminal, Storage Transfer Co. v. Thomas, 162 Okla. 5, 18 P.2d 891, and Rorabaugh-Brown Dry Goods Co. v. Matthews, 162 Okla. 283, 20 P.2d 141, the court passed upon the question where the Commission was without authority to make its first award. It was held that certain jurisdictional facts, to wit, those required by the act to bring the cause thereunder, must be asserted and not denied or proved and found, and such must appear, before the Commission, a body of limited jurisdiction, acquires the power to act finally; that, in the absence of a specific adjudication of these jurisdictional facts, the Commission is not authorized to enter a final award. It was further held that this issue of jurisdiction could be raised before the Commission at any time unless such issue had been previously adjudicated. Thus, we are of the opinion that the Commission may, by virtue of its continuing jurisdiction, at any time entertain a proceeding attacking its jurisdiction. If the jurisdictional question was subject to be and was adjudicated formerly, then the Commission upon determining those issues must dismiss the proceeding; if it was not formerly adjudicated, the Commission must pass upon it. Some matters of law or fact may be so clearly beyond the jurisdiction of the Commission that it has not even the power to adjudicate the question, or certain action may be so clearly unauthorized that any step in that direction is without legal sanction. In such a case as this, if the Commission has taken such action, we think it is authorized to entertain a proceeding to set aside and vacate the same, on the ground that it was without power to adjudicate the issue over which it asserted authority, and that therefore its adjudication cannot become final. No proceeding to review need be commenced within 30 days, the lack of jurisdiction may be asserted at any time, and the order made thereon is subject to review in this court.

In the case at bar we observe that the order entered by the Commission may be void upon several grounds, but do not feel it necessary to go beyond the ground specified in the original opinion. The order was without authority and void, the Commission was authorized to entertain a proceeding to vacate it at any time, and its determination thereon is reviewable in this court. We, therefore, hold that the original opinion, as supplemented hereby, is correct, and the petition for rehearing should be and is denied.

RILEY, C. J., CULLISON, V. C. J., and ANDREWS, McNEILL, OSBORN, and BUSBY, JJ., concur. BAYLESS and WELCH, JJ., absent.