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Murphy v. State Accident Insurance Fund

March 26, 1973

MURPHY, APPELLANT,
v.
STATE ACCIDENT INSURANCE FUND, RESPONDENT



Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge. No. 379-862.

Edwin A. York, Portland, argued the cause and filed the brief for appellant.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.

Langtry

This is a workmen's compensation case in which the claimant appeals from a circuit court order affirming the Workmen's Compensation Board's and hearing officer's dismissal of his claim for increased compensation on account of alleged aggravation.

The claim was related to injuries the claimant received in August 1966. The claim for these injuries was accepted by the employer and on November 12, 1968 a determination order was issued allowing an award therefor. The claimant received lump sum payment of the award.

In May 1970 the claimant underwent further examination which indicated cervical spine disc trouble and surgery to correct that trouble followed. For this,

a claim for increased compensation on account of aggravation of the 1966 injuries was filed. At a hearing on this, the claimant testified that during the pendency of the aggravation claim the lumbar area of his spine became symptomatic, requiring surgery twice. This was a surprise to his attorney, and the hearing was continued for the purpose of securing additional medical reports. The record is silent as to whether the parties agreed to include the lumbar injury in the pending aggravation claim. However, at the continued hearing the claimant submitted three pages of hospital records relating to the lumbar injury and the corrective surgery therefor. After consideration of the new evidence and completion of the hearing, the hearing officer held: (1) that the claim relating to the cervical spine pathology was compensable as an aggravation, and (2) that the claim relating to the lumbar pathology was not compensable as an aggravation because there was no evidence causally connecting it to the original injury. The order issued contained the statutory notice of right to request Board review. No such request was timely filed.

Twelve days after the review notice time expired, claimant filed a new aggravation claim based on the same lumbar pathology. This claim was supported by an opinion of Dr. Seres. The substance of that report had been considered in the previous proceeding. The Fund entered a special appearance at the ensuing hearing, objecting to jurisdiction on grounds that the claim was res judicata. The claim was dismissed.

The Board and the circuit court affirmed.

Claimant contends that the first order relating to the lumbar pathology was void and does not preclude the claimant ...


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