Cont. Casualty Co. v. Ind. Comm. of Utah

The employee, Vukovich, was injured in the course of his employment March 13, 1924. The injury consisted of a fracture of one of the lumbar vertebrae and a small spicule of bone chipped off the lower margin of it. The employee was given surgical and medical treatment. On July 24, 1924, a surgical operation known as the Hibbs operation was performed on him. The purpose of the operation was to cause ankylosis between the vertebrae upon which the operation was performed, to stabilize and hold in place the fractured vertebra, and to prevent motion in that part of the spine. As explained by the surgeons, there is motion between normal vertebrae but, in case of a fractured vertebra or of a false union of fractured or broken vertebrae, there is a false motion resulting in more or less irritation and pain, to avoid which fixation by surgical operation is made by destroying the articular facets and producing or creating fresh bone or bone matter so as to make the fracture fixed or to make the fractured and adjacent vertebrae fixed and solid by ossification, thereby avoiding motion between the vertebrae involved, and that the operation involves not only the fractured vertebra but those immediately above and below the fracture, in this instance the second, third, fourth, and fifth lumbar vertebrae and the sacrum. The purpose of the operation thus was to produce rigidity and lack of motion between such vertebrae. That the operation was desirable and advisable, and was skillfully performed and produced the usual result in such kind of case is, I think, clearly shown. The employee remained in the hospital for a period of about eight weeks after the operation and later was discharged. The employer, or the insurance carrier, voluntarily paid the employee compensation for his injury for a period of a year or more.

On April 24, 1925, the matter came to the attention of the Industrial Commission. Upon hearings had and investigations made by it between that time and June, 1925, and on the report of its medical advisory committee, consisting of Drs. Galligan, Hammond, and Pendleton, who had examined the employee on May 29, 1925, nearly a year after the operation, the commission, on June 4, 1925, ordered and directed the employer, or its insurance carrier, to pay the employee a further and additional compensation of $16 a week for 20 weeks to be paid in a lump sum of $320, and so notified all parties concerned. The advisory committee reported to the commission that as a result of the operation it found a solidification and rigidity of the vertebrae involved. On June 9, 1925, counsel for the employee, in writing, notified the commission that the compensation ordered and directed to be paid "was unfair," and that the employee did not feel justified in accepting such compensation and asked "for a formal hearing" on the matter. Thereupon the commission set the case for hearing July 28, 1925, between which time and September 23, 1925, full hearings on the merits were had with respect to the nature, character, and extent of the injury, the employee's condition since the operation, and the extent of his disability. Indeed, that was the only contested issue. At such hearings the report of the advisory committee, without objection, was put in evidence. The commission also heard the testimony of Dr. Hosmer, who performed the operation, and of Dr. Colonge and Dr. Holbrook, who all theretofore had examined the employee. At that hearing Dr. Hosmer fully explained the character and purpose of the operation. He testified that the operation involved the second, third, fourth, and fifth lumbar vertebrae and the sacrum, and testified that on a recent examination of the employee he discovered a substantial fixation and loss of motion between all such vertebrae. His testimony in the main was corroborated by that of Dr. Colonge and of the medical advisory committe. Dr. Colonge, and as the medical committee had theretofore reported, testified that the chief difficulty was the employee's consciousness of the localized rigidity which he did not understand was the necessary and desired result of the operation, and that he had not yet accustomed himself to the rigidity. At this hearing the employee contended, as he had in all the hearings, that he could do only light work and was unable to do heavy work, and that he still suffered pain, and made complaint of pain to the various surgeons who had examined him, but who testified that they could not discover anything which would cause him pain, except Dr. Holbrook, who was called by the employee as a witness. He, in substance, testified that upon an examination of X-ray films, and upon an examination of the applicant, he was of the opinion that there was not a complete union or solidification and that consequently there was some movement between the second and third, and the third and fourth lumbar vertebrae which would occasion more or less pain; that, the operation then having been performed only about a year, he would not expect a complete stabilized condition within such period, and that more time should elapse before attempting to fix a permanent disability; that, while the employee was able to do light work, he was not able to do heavy work, and recommended that the employee be given physio-therapy treatment and massage, and that, if properly handled and with proper treatment, the employee ought to be well in a period of about eight months more. At the request of the commission, the employee was examined in the presence of the commission and counsel for the parties by Dr. Hosmer and Dr. Holbrook, Dr. Hosmer explaining the condition of the employee as the examination proceeded and after it was concluded. The doctors still disagreed; Dr. Holbrook especially contending that the X-ray films showed that there was not a complete union between the second and third and third and fourth lumbar vertebrae. All of the other doctors examining the films disagreed with him as to that, and contended, that the films showed a union and fixation between such vertebrae.

Thus the character and extent of the employee's injury and the extent of disability were fully gone into, and especially with respect to the question of whether there was a fixation and loss of motion between the vertebrae involved, concerning which the commission heard the testimony of a half dozen surgeons, five contending that there was a fixation and one that there was only a partial fixation.

At the conclusion of the hearings, and upon submission of the cause, the commission, on October 5, 1925, found that the employee sustained "a fracture of the right third transverse process of the lumbar vertebra and a small spicule of bone chipped off the left lower margin of the same third lumbar vertebra," that as a result thereof the employee suffered a loss of bodily function, and ordered and directed that the employer or insurance carrier, in addition to the money already paid the employee, pay an additional sum of $16 a week for a period of 20 weeks, to be paid in a lump sum of $320 as theretofore directed by it. Not anything is contained in the order nor otherwise indicated as to any continuing jurisdiction of the cause retained except as in all final decisions rendered by the commission the recitation in the order that, "in case any party hereto is dissatisfied with the decision herein rendered and desires to appeal from the same, application for rehearing must be filed with the commission within 20 days from the date hereof." No application was made for a rehearing by either party within such period, and after such time had expired the mining company or its carrier paid the additional compensation so ordered. There the matter rested until six months or more after the decision, when the employee, claiming he was entitled to further compensation, on April 9, 1926, by an ex parte application, applied for a further hearing, which, ex parte, was granted and a day set for the hearing, At the hearing, the mining and insurance companies objected to any further hearing, claiming that the decision rendered on October 5, 1925, was final, that no application within 20 days for a rehearing was made, and no review sought of the decision, and objected to the case being reopened or further heard. Notwithstanding the objections the commission further heard the case. At that hearing the employee was again examined by the advisory committee, then consisting of Drs. Pendleton, Callister, and Kirby, and further evidence was heard respecting the matter. As a result of that hearing, the commission, in April, 1926, affirmed its decision of October 5, 1925. With respect thereto it found:

"The commission feels, after a careful review of the circumstances in this case, and particularly after considering the conclusions made by the medical advisory committee, that it would not be justified in requiring the insurance carrier to pay compensation in addition to that heretofore paid. It does not appear that the applicant's condition has changed since the date the commission rendered its decision ordering the insurance carrier to pay to the applicant twenty weeks' compensation in a lump sum and therefore applicant's request that he be paid compensation in addition to that heretofore paid should be disallowed."

No appeal was taken from that decision and no review sought; nor was any application for a rehearing made within twenty days thereafter. The matter again there rested until about five months after the last hearing, when the employee, in September, 1926, filed a further petition with the commission wherein he alleged that before the hearing in April, 1926, he had been examined by a Dr. Ossman, but through some misunderstanding the doctor was not present at the hearing; that the commission did not have the benefit of his judgment and examination, and that, if the doctor had attended and testified, "your petitioner would have been granted and awarded further and additional compensation, and alleges that at said time the physical condition of your petitioner was changed, and that he was then suffering greater disability than existed at the time your petitioner was awarded the 10 per cent disability." He further alleged that since the hearing "in May, 1925," he had been unable to obtain any kind of employment on account of his physical condition, and as a result of the operation his back was rendered permanently stiff and rigid, so that he was unable to bend over or do hard manual labor; that he was recently examined by Dr. Baldwin, and was advised by him that in his opinion the employee was not able to do heavy work and that his disability amounted to from 35 to 50 per cent.; and that "your petitioner alleges that he has since the last hearing in the month of May, 1925, suffered a further and greater disability than existed at the time of the rendition of said award in the month of May, 1925, and believes and therefore alleges that he is entitled to be paid further and additional compensation," and that he was entitled "to have a further hearing," with respect to his physical condition. Not anything was alleged as to what facts or conditions would be testified to by Dr. Ossman or by Dr. Baldwin, except by the latter that the employee was not able to do heavy work, and, while the employee merely in general terms alleged that he "suffered a greater and further disability than existed in May, 1925," yet alleged no facts with respect thereto, nor in what respect or in what particular there was any changed condition. Upon the filing of such application, without service or notice to the employer or the insurance carrier, the commission, by resolution ex parte, reopened the case, and granted a further hearing and set the case for hearing on October 25, 1926. The case came on for hearing November 4, 1926. At that time the mining and insurance companies appeared and objected, as they had done at the hearing in April, 1926, to reopening the case, contending that the decision of October 5, 1925, was final, and that the commission was without jurisdiction to further hear the cause, and requested the commission, before entering upon the hearing, to first determine whether or not it had jurisdiction to open the case and further hear it, to which the commission replied, "The case was reopend according to resolution [on ex parte application], and we assume jurisdiction;" and thereupon the case proceeded to a hearing, the chairman of the commission, however, stating that the burden was upon the applicant to show that there was a changed condition.

Over the objections of the mining and insurance companies, a letter given by Dr. Baldwin to the employee was read into the record. It was a letter "to whom it may concern," and recited that the employee was injured in a mine by a cap falling and striking him on the lower part of the back; that he was in the hospital 2 1/2 months and was in a cast, and was later operated on, the doctor thought, a Hibbs operation; that since leaving the hospital the employee reported that he tried to get work, but because of his injury was not able to hold a job, and that, if he bent over for 15 minutes his back hurt and his legs trembled; that an examination showed a scar on his back, and that the lower portion of his back seemed to bend slightly; that, judging from what the employee stated as to his efforts to work and his inability to accomplish anything, he judged that the employee's disability was from 35 to 50 per cent; and that in his opinion no man who had a broken back or a diseased spine should ever do heavy work again. The doctor himself was not called, nor was his deposition taken. The commission also read into the record its former decision of October 5, 1925, and the several reports of its medical advisory committee theretofore received and considered by it. Then Dr. Holbrook, the chief witness for the employee, was again called. He, in substance, testified that there was not a complete union between the second and third lumbar vertebrae and that there was still some motion between those vertebrae which would still occasion pain. At the former hearing he had testified that there was not a complete union between the second and third and between the third and fourth lumbar vertebrae and that there was motion between such vertebrae which would occasion pain. He further testified that:

"My argument is that he had trouble there then [at the time of the former hearing] and still has it; * * * to my mind the first pictures were actual proof that consolidation had not taken place and physical examination was convincing to me that there was motion present. To other people [Dr. Colonge, Dr. Hosmer, and the advisory committee consisting of three surgeons] who made the examination of those pictures and to some who attended the hearing they showed shadow as evidence that nature was laying down a bony union, but I contended at that time it had been taking place; I said then it had not, and I still say it hasn't. [Six or seven surgeons still disagreed with him as they had before.] I say the pictures shown to-day, which were taken August, 1926, are only further proof of my contentions then. * * * I realize that at the first hearing which I attended that others did not take the same view of those pictures that I did, nor of the physical condition, and so you may be justified in concluding, since the majority of those examining the patient hold a different view than I, that he [the employee] was in better shape than I thought he was and that he would go on getting better; you might very well assume such a conclusion."

He was asked by the commission, in view of all the circumstances in the case, taking into consideration that he had examined the employee prior to October 5, 1925, and prior to the X-rays taken since then and just examined by him, if in his judgment, since the decision rendered in October, 1925, the employee's "condition had changed for the better or for worse." The doctor answered:

"I would say there is no material change. I am still of the same opinion I was at that time. * * * There has been some slight improvement in regards to spinal irritability — that is, the spine is not quite as sensitive as it was at that time — there has been a little improvement in the amount of muscle tension and muscle spasm over the lumbar area. The general symptoms of the case as described and interpreted by the patient are about the same; the general physical findings are about the same."

He further was asked whether in his opinion there would result a complete union between the second and third lumbar vertebrae. He answered that he thought not.

Then Dr. Ossman was called by the employee. After testifying as to the purpose of a Hibbs operation and that he had examined the employee, he, in substance, testified that in viewing the films exhibited to him it appeared that there was a solidification or bony ankylosis between the joints of the processes between the second and third and also the processes lower down. Then he was asked by the commission that, inasmuch as he had examined the employee in March, 1926, whether he could say the employee's condition had changed since that examination. The doctor answered, "I cannot see any change on physical examination;" and testified that when he made the examination of the employee he also examined and went into the X-ray views of the spine. Later he was recalled to the stand and had exhibited to him the X-ray films taken in August, 1926, and was asked what was shown by them. He answered that there was a union and ankylosis between the third, fourth, and fifth lumbar vertebrae and sacrum and that —

"The joint between the second and third shows increased density, signifying an ankylosis, although it is not so distinct in this particular joint as it is in the lower ones, so, in answering the question, there is some evidence of ankylosis or fusion of those joints, but, whether or not it is complete, it will be impossible for me to say. * * * I am not saying that the fixation is not sufficient between the second and third. It may be all right. From my interpretation of the X-rays I cannot say from that interpretation whether it is complete or not."

Then Dr. Hosmer, Dr. Colonge, Dr. Tyree, and Dr. Heuther were called. They, on examinations made, testified that there was a substantial union and ankylosis between all of the vertebrae involved, including the processes between the second and third, and so interpreted the X-ray films. The report of the medical advisory committee and the testimony of Drs. Hosmer and Colonge at this hearing were the same as on the former hearings, and on this hearing were corroborated by Drs. Heuther, Tyree, and Ossman.

At the conclusion of the hearing, and on a submission of the case, the commission found:

"That, when the decision was rendered on October 5, 1925, applicant's condition was not fixed, and that his condition since that time has changed, and the medical testimony presented on the petition for rehearing and to reopen applicant's case indicates very clearly that there is a changed condition."

The mining and insurance companies on this review not only challenge the jurisdiction of the commission to reopen the case, but also challenge its findings as to any changed condition and as not being supported by, but as being contrary to, the evidence. I think the contention is well founded.

The finding of the commission in such respect is based on the testimony of Dr. Holbrook that in his opinion there was not a complete union or solidification between the second and third lumbar vertebrae, notwithstanding the testimony to the contrary of a half dozen or more surgeons of equal ability, and that in his opinion there would be no complete union, except as might result from another operation, which he thought was inadvisable.

Though it be assumed that it was within the province of the commission to find the fact as testified to by Dr. Holbrook as against the testimony of a half dozen or more other surgeons, that there was not a complete union and that there was still motion between the second and third lumbar vertebrae, yet, even according to his testimony, there was no changed condition. At the prior hearings he testified that there was no union between the second and third lumbar vertebrae, and at the last hearing testified there still was no union, that the condition in such respect was the same, and that there was no material change in the employee's condition, though in some particulars it had improved. The substance of Dr. Holbrook's testimony was that upon the employee's condition and disability, as made to appear at the prior hearings, the commission did not then award sufficient and adequate compensation, he contending there was a loss of ability of about 33 1/3 per cent. He testified to that several times at the last hearing. Dr. Ossman testified that there was no material change in the condition of the employee from the time he first examined him in March, 1926, and that in his opinion there was a union between the vertebrae involved, though not so clearly shown between the second and third. According to the prior decision of the commission, it found that the employee, as a result of the injury, sustained a broken back, and at last hearing found he still had a broken back. It is manifest that the only issue tried at the last hearing was the same issue tried on the two prior hearings, October, 1925, and April, 1926, the nature and extent of the employee's injury and the extent of his disability, and especially whether or not, as a result of the operation, the vertebrae involved were fixed and stabilized, and this too, upon the same kind of evidence and substantially upon the testimony of the same witnesses whose testimony was the same at the last hearing as on the former hearings. No facts were stated in the petition for a rehearing, and none found by the commission, showing a changed condition. Thus on the record it is clear that what was tried at the last hearing was not some new or subsequent condition arising after and prior decision and which could not have been presented or tried on the former hearings, but was a mere retrial of what was at the prior hearings presented and tried, a retrial of the same issue, the same point, and the same condition by the same kind of evidence, and in the main merely a re-examination of the same witnesses giving the same testimony theretofore given by them at the former hearings. The reasons stated by the commission in its findings for rendering a different decision at the last hearing from that on October 5, 1925, show that what was tried at the last hearing was the same thing, the same point and the same condition tried on the former hearings. The commission in its findings says that when the former decision was rendered it was on the theory that "the vertebrae between the second and third processes would ankylose, unite, and solidify," but that it was now found that they had not, and that there was "no hope to secure an ankylosis" between such vertebrae. Such statement itself shows a mere review by the commission of its former decision or a retrial of the same issue, and the decision thereon rendered but a correction of mere error. On the former hearings one doctor testified that the processes between the second and third lumbar vertebrae had not ankylosed, six doctors that they had, and at the last hearing one doctor, the same doctor, that there was still not a complete ankylosis between such vertebrae and six or more other doctors that there was. Such is the "condition" which the commission called a "changed condition." Substance may not be so diverted or transformed by a mere misnomer, calling black white and white black.

Whether the commission based its former decision, as it now asserts, on the theory that the vertebrae between the second and third processes had ankylosed or would ankylose and unite, must be ascertained and determined by what was then presented, tried, and determined on the former hearings. Whatever theory, if any, it then had must be disclosed by its then record, and may not now be asserted by the commission aliunde the record. To permit it to do so would be most mischievous. Looking at its record, it had the same kind of evidence and no more at the last hearing, that there was no union between the second and third processes, as it had at the prior hearings; and the decisions rendered by it on the prior hearings were just as much final hearings and final dispositions of the point or condition with respect to the vertebrae involved as is the last decision, or any final decision rendered by it on a full hearing and determination of an issue. There can be no doubt about that. No continuing jurisdiction was reserved, and not anything made to appear by the findings, decision, or by any record that the commission on the prior hearings was in doubt as to the employee's condition, or the extent of his disability, or that his ultimate condition was not then determinable, or that it in any manner retained the case for further consideration or further hearing. The most that may be said of the aliunde asserted "theory" of the commission is that on the evidence adduced on the prior hearings it had some undisclosed "thought" or opinion either that there were complete union between all of the vertebrae involved, or, if only partial or no union between some of them, they probably would unite, but now on the testimony of Dr. Holbrook that there was no union between the second and third vertebrae, which condition he testified existed at the prior hearings, the commission, by finally accepting the opinion of Dr. Holbrook as against the opinions of six or seven other surgeons, reached the conclusion that the prior award made was inadequate and thus granted further compensation. If the compensation awarded October 5, 1925, and affirmed on the hearing in April, 1926, was adequate, then was it also adequate at the last hearing, for it is indisputably shown by the testimony of Dr. Holbrook, relied on by the commission in granting further compensation, that the condition of the employee was the same at the last hearing as it was at the prior hearings, and, if any different, had improved. Thus the real question before us is, May the commission, in the exercise of what is called its continuing jurisdiction, reopen a case, not to inquire into new or changed conditions subsequent to the former and final decision and which could not have been presented and considered on such former proceedings, but to retry the case on the same issue, the same point, the same condition theretofore tried and determined, and by the same kind of evidence, to correct mere error? It is my opinion that it may not do so.

If the award last made be affirmed as having been properly made, what is to prevent the commission thereafter, on its own motion or on an ex parte application, from again opening the case and making a further award on testimony of Dr. Wizardgavitch, fresh from clinical institutions of Czechoslovakia, that all of the opinions of all of the surgeons, including Dr. Holbrook, theretofore expressed, were puerile, and that there was not, never had been since the operation, and that there never would be, any union whatever of any of the vertebrae involved? With equal propriety the commission could say that as the result of the prior hearings it "thought" or made awards "on the theory" that there was a union between all or some of the vertebrae, or except between the second and third, or that in time there would be a complete union between all of them, but, since hearing Dr. Wizardgavitch, not only once but twice, each time contradicted by everybody else, all such theories were exploded, and the commission persuaded that grievous error was committed which it felt ought to be rectified in due haste by awarding further compensation.

Then there is the further question: Where on a record a final decision has been rendered and no application made for a rehearing within the time prescribed by the commission and the award made fully paid, and though it be assumed that the commission had or retained a continuing jurisdiction of the cause, may either party to the record, without notice to the other, apply to the commission and ex parte be granted a further or rehearing? I think not. In such case I think it clear that the party applying for a further hearing, or the commission, is required to give the other party notice of such application before a ruling on it. When a final decision has been made and the time in which to apply for a rehearing has expired and the compensation awarded fully paid, the parties have acquired a vested right in the decision which thereafter may not be disturbed or set aside and a further hearing granted without notice and an opportunity given to be heard as to whether a further or rehearing should or should not be granted; and, when the commission in such case, without notice and without giving the opposing party an opportunity to be heard, on a mere ex parte application, grants a rehearing, I think it exceeds its jurisdiction.

A further point is made that the petitioners here, the mining and insurance companies, are not in a position to invoke a review of the last decision of the commission because neither of them, within 20 days after such decision or otherwise, filed an application before the commission for a rehearing. The statute (Comp. Laws 1917, § 3148, as amended by Laws Utah 1921, p. 181), provides:

3148. "Right of Appeal. (a) Within thirty days after the application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on the rehearing, any party affected thereby including the state insurance fund, may apply to the Supreme Court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original award or the award on rehearing inquired into and determined."

The section further provides that the review shall not be extended further than to determine whether or not the commission acted without or in excess of its powers and whether or not the findings of fact support the award under review, and that the provisions of the Code of Civil Procedure of this state relating to writs of review shall so far as applicable, and not in conflict with the Industrial Act, "apply to proceedings in the courts under the provisions of this section." There is no statutory provision within what time a petition for a rehearing is required to be filed. There, however, is a statute (Comp. Laws Utah 1917, § 3069) which provides that —

"Subject to the provisions of this title [Industrial Act] the commission may adopt its own rules of procedure, and may change the same from time to time in its discretion."

In pursuance of that, the commission adopted a rule that, if either party be dissatisfied with a decision rendered or an award made by the commission and desires a review thereof, he must file a petition for a rehearing before the commission within 20 days after the rendition of the decision or award made. And, in the order at the last hearing, as well as in the decision rendered in October, 1925, the commission therein stated that —

"In case any party hereto is disatisfied with the decision herein rendered and desires to appeal therefrom, application for a rehearing must be filed with the commission within 20 days from the date hereof."

While the commission may, in harmony with the Industrial Act provide reasonable rules for its own procedure and practice, yet it is apparent that it may not prescribe a procedure for this court. Nor may it designate or provide when and under what circumstances an appeal may be taken from or a review sought of a decision made by it. As to that the statute must control, and, in the absence of statutory provisions, we, and not the commission, will determine when and under what circumstances an aggrieved part may apply for and be granted a writ of review. The statute does not say that the filing of a petition before the commission for a rehearing is a prerequisite to a review, nor, in my opinion, is the statute open to such a construction. The statute in such respect refers only to a finality of a proceeding before the commission and that a review may not be had of a decision until it has become final — may not be had while the proceeding is still pending on a rehearing and before the case is finally disposed of — analogous to the Code of Civil Procedure relating to appeals, that an appeal may not be prosecuted from a judgment until a motion for new trial has been disposed of, for until then the judgment is not final, but not that a motion for new trial is a prerequisite to an appeal. That under the Code of Civil Procedure an appeal may be prosecuted from a final judgment, regardless of whether a motion for new trial was or was not made may not be doubted; and, for the same reason, a writ of review may be sought to review a final decision of the commission, regardless of whether an application for a rehearing was or was not made. In a contested case before the commission, fully heard and considered by it, questions of jurisdiction and of the sufficiency of evidence to support an award made or refused, being inherent in every case, I see no good reason for requiring an aggrieved party to again present what theretofore was fully presented, considered, and determined by the commission and compel it to err twice before the proceedings resulting in a final decision may be reviewed.

But further as to this: The statute provides that, "if the application for a rehearing is granted," any party affected thereby may apply to this court for a writ of review "within thirty days after the rendition of the decision on rehearing." The petition filed by the applicant, as has been seen, was "for a further hearing," claiming that Dr. Ossman was unable to be present at the prior and April hearing and give his testimony, and that, had he been present and had he testified at such hearing, the applicant "would have been granted an award for an additional compensation," and that the applicant had recently been examined by Dr. Baldwin, who gave it as his opinion that the applicant's disability amounted to from 35 to 50 per cent. The commission itself, by its findings, characterized the petition as one "for a rehearing." The case ex parte was reopened, and a further or rehearing granted, and the very issue, the very point, the very condition of whether or not there was a union between all of the vertebrae involved in the operation, was again heard, tried and determined, a rehearing in fact only of what had theretofore been tried and determined. Hence I think it clear that the decision rendered by the commission at the last hearing was in fact a "decision on rehearing" and the application for a review thereof having been applied for within 30 days from such decision was I think in time.

For the reasons stated, I am of the opinion that the commission was not authorized to reopen the case and grant a further hearing; that not anything was alleged, shown, or proved to show any new or changed condition; that the writ of review was applied for in time; and that on a review thereof the award should be annulled.