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1926 OK 881
251 P. 1040
123 Okla. 64
Case Number: 16324
Decided: 11/09/1926
Supreme Court of Oklahoma



¶0 Master and Servant--Workmen's Compensation Law--Jurisdiction of Industrial Commission Divested by Pendency of Action to Review Orders. Where a party, feeling aggrieved by an order of the Industrial Commission granting refusing, increasing, or diminishing compensation under the Workmen's Compensation Law of this state, files his petition in the Supreme Court praying this court to review such order, the filing of such petition in this court divests the Industrial Commission of jurisdiction in the case, and any order made by the Industrial Commission while such petition for review is pending and undetermined in the Supreme Court is a nullity. George M. Porter and John L. Fuller, for plaintiff in error Hailey-Ola Coal Company.

E. C. Mariannelli, for defendant in error V. B. Vinzetti.
George Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State Industrial Commission.


¶1 The claimant, V. B. Vinzetti, was employed by the respondent, Hailey-Ola Coal Company, and while so employed sustained a fracture of the bones of the left leg between the knee and the thigh. The accident occurred on September 28, 1922, and claimant was sent to the hospital, where he remained for a period of two or three months, when he was discharged therefrom, and the respondent paid all doctor bills, hospital bills, etc., amounting to $ 387.50, and continued to pay claimant compensation provided by the Workmen's Compensation Law for a full period of one year and five months or a total compensation, apart from doctor bills, etc., of $ 1,422, and offered compensation up to and including April 10, 1924. Further payment was stopped upon recommendation of the physicians, and in April, 1924, the respondent filed its motion with the Industrial Commission to set the cause down for a hearing for the purpose of determining further liability. The cause was set for hearing at McAlester, on December 9, 1924, at which time and place plaintiff was present in person and by counsel and oral evidence introduced and a full hearing had, and on February 24, 1925, the Commission made a finding that the "disability resulting from said accidental injury had ceased prior to April 10, 1924, that any disability which the claimant suffered subsequent to April 10, 1924, was not the result of said aforementioned accident." The Commission then made its order sustaining the motion to discontinue compensation as of April 10, 1924.

¶2 The claimant, within 10 days after this order of discontinuance of compensation was made, filed his motion with the Commission to vacate said order and review the cause. No notice of this motion was served upon respondent. Notwithstanding the pendency of this motion the claimant filed his petition in the Supreme Court praying a review of the order discontinuing compensation, said cause being No. 16250 in this court, Claimant says in his brief:

"The appeal was naturally filed while his (claimant's) motion was still pending and undecided. The Commission, knowing its decision would be reviewed by the appellate court, reconsidered the testimony and record, and found that its former order was erroneous, and on March 28, 1925, made an order and award which the Commission believed to be supported by the evidence, and in its opinion subserve the ends of justice better than its former opinion."

¶3 The record discloses that the Industrial Commission, while the petition for review was pending in this court, attempted to vacate its order discontinuing compensation, and attempted to promulgate an order increasing and continuing compensation for a period of 175 weeks, or three years and 15 weeks, and all this was done without notice to the coal company, and without additional evidence being taken, but simply upon motion and brief filed by claimant.

¶4 Claimant says in his brief:

"This is a prerogative which the Commission undoubtedly has under rule 30, of the Compensation Law. Section 7318, C. O. S. 1921, provides that the Industrial Commission shall make and adopt rules for the purpose of carrying into effect the provisions of this act (the act creating the Commission), and it appears the Commission did adopt rule No. 30, which provides how and when to proceed to have the Commission's award or orders reviewed before the Commission, by any party aggrieved thereby, and further provides that if 'in the opinion of the Commission, justice will be subserved thereby, a rehearing will be granted, and the award, order, or decision complained of will be vacated.'"

¶5 While it is true the power and jurisdiction of the Industrial Commission over each case is continuing, and in the exercise of that power and jurisdiction, it may, from time to time, make such modification or change with respect to a former finding or order as in its opinion may be just, either upon its own motion or upon the motion of either party, this power is suspended when the order of the Commission is before the Supreme Court for review.

¶6 There is no conflict between the foregoing finding and the opinion of this court as announced by Mr. Justice Phelps in Wilkerson v. Devonian Oil Co. et al., 114 Okla. 84, 242 P. 531, for the following reason: In that case the Industrial Commission made an order discontinuing compensation, and Wilkerson had the election of two remedies: (1) To move that the Commission vacate its order, or (2) to appeal to this court. He chose the latter, and pending his appeal, the Industrial Commission made no order in the case, and in the opinion announced by Mr. Justice Phelps, it was held: