Thurston v. State Accident Insurance Fund

490 P.2d 1280 (1971)

In the matter of the Compensation of Heber W. THURSTON, Claimant. Heber W. Thurston, Respondent, v. STATE ACCIDENT INSURANCE FUND, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted September 20, 1971.

Decided November 26, 1971.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Richard Noble, and Pozzi, Wilson & Atchison, Portland.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

The State Accident Insurance Fund appeals from a judgment of the circuit court holding that the claimant was suffering from an occupational disease and directing the payment of compensation. No useful purpose would be served by a recital of the facts other than to note that two of the three members of the medical board of review wrote medical reports indicating that the claimant had a disability resulting from an on-the-job aggravation of a pre-existing disease and then belatedly filed answers to the statutory questions, ORS 656.812, which, although not executed in statutory form, indicated that two of the three members of the board were answering "no" to the question, "Does claimant suffer from an occupational disease or infection? * * *"

*1281 While, as Beaudry v. Winchester Plywood Co., 255 Or. 503, 516, 469 P.2d 25 (1970), points out, "* * * To say the least, the occupational disease law is not a masterful job of statutory drafting * * *," we can neither ignore nor rewrite it. The proceedings, both at the administrative and judicial level, which gave rise to this appeal took place prior to Lawton v. State Accident Ins. Fund, Or. App., 92 Adv.Sh. 1355, 485 P.2d 1104 (1971), and Johnson v. State Accident Ins. Fund Or. App., 92 Adv.Sh. 649, 483 P.2d 472 (1971), although not prior to Sowell v. Workmen's Comp. Bd., 2 Or. App. 545, 470 P.2d 953 (1970), and were in conflict with those decisions. As we pointed out in Lawton, Beaudry holds that "disability resulting from on-the-job aggravation of a pre-existing condition not caused by an injury * * * is an occupational disease within the meaning of ORS 656.802(1) (a)." It is obvious from the records of this case that the board of medical review did not know that this was the law. When a board of medical review is appointed it should be so advised by the Workmen's Compensation Board.

We note that the Fund requested review by a medical board of review pursuant to ORS 656.808 on December 9, 1969, that the board was not organized until February 2, 1970, and that it did not submit its answers to the statutory questions until January of 1971.

ORS 656.726 charges the Board with general supervision, regulation and enforcement of the workmen's compensation laws and authorizes the Board to make and declare rules and regulations reasonably required in the performance of its duties. This statute gives the Board the authority and the duty to provide for timely appointment of members of a medical board of review and to require that a board, once appointed, function within the time limits prescribed by ORS 656.810 and ORS 656.814.

It follows that the judgment in this case must be set aside and the matter remanded to the Workmen's Compensation Board for submission to a medical board of review[1] which has been properly advised as to the Oregon definition of occupational disease.

Reversed and remanded for further proceedings in accordance with this opinion.

[1] A medical board of review is a special board constituted to act in an individual case. Its members may or may not all be available at some later date after they have purportedly discharged the function for which they were appointed. In this sense, a medical board of review has the attributes of a jury. The ultimate duty of accepting and filing findings, or rejecting them as not in accordance with statute and sending the matter back to the same medical board of review or a newly-constituted medical board of review rests with the Workmen's Compensation Board.