Opinion
No. 31508
Decided December 29, 1948.
Workmen's compensation — Employer not entitled to writ of mandamus — To restrain Industrial Commission from paying permanent total disability award — For silicosis contracted during claimant's employment by such employer — Evidence that employee suffered temporary total disability during former employment — More than one year or six months before filing claim.
An employer is not entitled to a writ of mandamus restraining payment of an award made by the Industrial Commission to a claimant who was found by the commission to be suffering from permanent total disability as a result of silicosis contracted in the course of his employment with such employer, although there was evidence that such claimant had more than one year prior to the filing of such claim with the commission suffered temporary total disability and had more than six months prior to such filing, a diagnosis of silicosis which arose while the claimant was employed by a former employer.
IN MANDAMUS.
This is an action in mandamus, originating in this court, against Coffinberry, Blake and Morse, as members of the Industrial Commission.
The relator alleges in its petition that it is a subscriber to the state insurance fund provided for in the Workmen's Compensation Act of Ohio; that the commission annually assesses premiums against it, the amount of which is determined by the amount of money in such fund; and that as such fund may become depleted the premiums of the relator are and will be increased.
Relator alleges further that Jacob Kanz, Sr., was on, and for some time prior to, April 25, 1947, in its employ; that on June 11, 1947, Kanz filed with the Industrial Commission form OD-4, being an application for occupational disease benefits, wherein he alleged in part II that his symptoms were "coughing and spitting up some times more than others, weakness, no appetite"; that these symptoms first appeared about four years ago when he was working for the National Bronze Company in 1943; that he last entered the employ of the relator in October of 1943; that he is now suffering from "silicosis, exposure to foundry dust, and conditions"; that he was attended by a physician who made the first diagnosis of an occupational disease, in April 1943; that in Kanz's application he declared that he "had similar attack in 1943" and was then treated by a physician, but that he had consulted no physician within the last two years; and that he had been employed in various foundries as a moulder from 1936 to April 25, 1947, and had not filed any previous applications concerning this or any other occupational disease.
The relator alleges further that part I of such application was filled out by Kanz's employer, wherein it stated that "Jacob Kanz, Sr., was aged sixty (60) years; that the symptoms were first reported to this relator on April 25, 1947; that Jacob Kanz, Sr., quit work for relator on April 25, 1947; that his occupation was that of a moulder; * * * that he first began employment for relator in 1936, and worked until 1942, when he returned and worked until April 25, 1947"; that relator stated further in such report made by it that "the claimant was employed by the National Bronze Aluminum Foundry Company when the diagnosis of silicosis was first made by Dr. Potts, and X-rays were taken at City Hospital on April 29, 1943. He was employed by Wellman Bronze Aluminum Company from June, 1943, to August, 1945. A second diagnosis of silicosis was made by Dr. Potts February 6, 1945. More than two (2) years have elapsed since that date and date of this application."
Relator alleges further that part III of such application was filled out and signed by Dr. Wallace Potts of Cleveland, Ohio, on May 22, 1947, and reads in part that "claimant's conditions and symptoms were 'very extensive infiltration of both lungs by foreign material — stone or coal — cough — shortness of breath — few medium rales. BP 120/70, temperature 98.6, weakness — diagnosis made by fluoroscopic exam'; that the date of his first treatment was January 31, 1945, and February 6, 1945; that the date of his diagnosis was February 6, 1945; that his diagnosis was 'extensive silicosis both lungs'; that the cause of the disease was stone dust * * *."
Relator alleges further that on June 23, 1947, Dr. Potts again filed a report reading in part: "Extensive clouding of both lungs — no signs of activity. Silicosis permanent total"; and that on May 20, 1947, Dr. Jean A. Groh filed a medical report to the effect "this is undoubtedly an old tuberculosis, but one cannot determine from this film alone as to present activity. The presence of silicosis is questionable because of the marked tuberculosis disease. There is a mottling in the periphery of the both lungs in the upper portion which appears to be more tuberculus than silicatic."
Relator alleges further that Kanz's claim came on for hearing before the Cleveland board of claims on December 1, 1947, when a finding and order was made to the effect that "the claimant contracted silicosis while in the course of and arising out of his employment with the employer named herein. * * * that claimant has been permanently and totally disabled from April 26, 1947, and that such disability is likely to continue indefinitely. It is, therefore, ordered that claim be allowed; that compensation on a permanent total basis be paid claimant from April 26, 1947, to date, less one week, and to continue without suspension unless future facts or circumstances warrant the stopping of payment * * *."
Relator alleges further that notice of such finding was mailed to relator by the board on December 4, 1947, and received by relator on December 5, 1947; that on December 10, 1947, relator filed with the commission an application for reconsideration, review or modification of the award of the board of claims, on the ground that such finding was clearly against the weight of evidence, or contrary to law for the following reasons:
"1. The board found that the claimant contracted silicosis while in the course of and arising out of his employment with the employer named herein. That finding is in error because Dr. L.W. Potts made a diagnosis of silicosis in April, 1943, after X-rays at City Hospital. The claimant was then employed by National Bronze Aluminum Foundry Company (See O. D. 4 Part II). A diagnosis of extensive silicosis in both lungs was also made by Dr. Potts on February 6, 1945. The claimant was then employed at Wellman Bronze Foundry Company. He re-entered the employ of Cleveland Co-operative Stove Company on August 29, 1945, more than 6 months after that diagnosis.
"2. The claimant was totally disabled on account of silicosis from April, 1943, to June, 1943 (see OD-4 Part II). He left National Bronze Aluminum Foundry Company. In April, 1943, on account of silicosis; was X-rayed at City Hospital; treated by Dr. Potts; and entered the employ of Wellman Bronze Foundry Company in June, 1943; worked there until August, 1945, in spite of a diagnosis of silicosis by Dr. Potts on February 6, 1945, without a claim being filed until about June 11, 1947.
"3. Under the provisions of Section 1465-68 a, General Code, an employee's claim for compensation is barred unless application therefor is made to the Industrial Commission of Ohio within one year after total disability began, or within six months after diagnosis. * * *
"4. Under the provisions of Section 1465-68 a, General Code, the General Assembly has authorized the Industrial Commission to pay compensation, medical, hospital and nursing expenses on account of silicosis in the event of temporary total, permanent total disability, or death * * *. The claimant in this case admits temporary total disability resulted from a similar attack in April, 1943, at which time a diagnosis of silicosis was made after X-rays at City Hospital.
"5. More than one year elapsed from the first date of temporary total disability on account of silicosis and more than six months elapsed after date of first and second diagnosis of silicosis before the claim was filed. The claim was not filed until June 11, 1947, two years and four months after the second diagnosis of silicosis, and four years after the first period of temporary total disability.
* * * * *
"7. Does the commission seriously contend that a claimant, who has been totally disabled on account of silicosis for years, and has been barred from receiving compensation because his claim was not filed within the statutory period, may perfect his claim for silicosis by subjecting himself to an exposure to silica dust in another employment? We do not think so! We believe that when the law says that the claim is 'forever barred' if it was not filed within the statutory period, it means 'forever,' and that it cannot be re-established by a subsequent exposure."
The relator alleges further that the matter came on for hearing before the commission on December 30, 1947, at which time relator's motion was denied; that the commission had no jurisdiction over this claim and no jurisdiction to make any award thereunder, for the reason that the claim was forever barred by reason of claimant's failure to file a claim on silicosis, within one year after his total disability began or within six months after the diagnosis of silicosis was made in April of 1943, and again on January 31 and February 6, 1945, and claimant was totally disabled from April 1943 to June 1943 on account of silicosis.
The prayer of the petition is that this court issue a writ of mandamus commanding the respondents to enter the proper order in this claim and deny the claim on the ground that they are without jurisdiction to entertain and consider the same, and that they should not make any payments of compensation thereunder.
The respondents filed a general demurrer and the issue thus raised is now before this court.
Messrs. Adams, Rapp McCann, for relator.
Mr. Hugh S. Jenkins, attorney general, and Mr. R. Brooke Alloway, for respondents.
The question here presented is whether an employer is entitled to a writ of mandamus to restrain payment of an award made by the Industrial Commission to a claimant who was found by the commission to be suffering from permanent total disability as the result of silicosis contracted in the course of his employment with such employer, although there was evidence that such claimant had more than one year prior to the filing of such claim with the commission suffered temporary total disability as the result of silicosis contracted while in the service of another employer.
Clearly, the writ prayed for by relator should not issue in any event unless it appears from the allegations of the petition that the Industrial Commission abused its discretion in allowing compensation to the claimant. The allegations of the petition disclose that Kanz was employed by the Wellman Bronze Aluminun Company from June 1943 to August 1945; that on February 6, 1945, while so employed, there was a diagnosis of silicosis by Dr. Potts; that Kanz was employed by the relator from August 1945 to April 25, 1947; and that he reported his disability from silicosis and filed his claim June 11, 1947.
There is no allegation in the petition that Kanz's attack of silicosis was a continuous disease since his employment with previous employers. On the other hand, according to relator's petition, the commission found that claimant had contracted silicosis while in the course of and arising out of his employment with the relator. The relator alleges in its petition that the commission was in error in so finding, but does not allege that the commission abused its discretion, and there are no facts alleged from which this court may conclude that there was such abuse of discretion.
This court has heretofore refused on general principles to interfere with the discretion of the commission in the allowance of claims under somewhat comparable circumstances. In the case of Copperweld Steel Co. v. Industrial Commission, 143 Ohio St. 591, 56 N.E.2d 154, this court held:
"1. An employer is not denied due process of law or equal protection of the law by reason of the fact that he is not given a right by statute to review an order of the Industrial Commission awarding workmen's compensation to his employees or dependents of his deceased employees.
"2. When such an order is challenged only on the ground that the claims allowed are not compensable, the employer whose merit rating will be affected thereby is not entitled to relief by way of extraordinary legal remedy."
This court further said in its opinion in that case:
"As heretofore indicated, such orders cannot be reviewed by this court at the suit of the employer who was not a party to the proceedings brought by the claimants, and the facts pleaded in the petition and amendment thereto do not entitle the plaintiff herein to relief by way of extraordinary legal remedy."
Later, in the case of State, ex rel. Hobart Mfg. Co., v. Industrial Commission, 150 Ohio St. 14, 80 N.E.2d 153, this court held:
"In the case of Copperweld Steel Co. v. Industrial Commission, 142 Ohio St. 439, 52 N.E.2d 735, this court suggested that an employer has no interest in the distribution of the state insurance fund and is not aggrieved until a merit-rating system is applied to him, which takes into account the distribution of awards to claimants employed by such employer. When that situation arises the employer, such as the relator in this case, could refuse to pay a premium assessed against it and upon suit to recover the same make its defense, if it has any. Copperweld Steel Co. v. Industrial Commission, 143 Ohio St. 591, 56 N.E.2d 154. That being true, the relator may not maintain this action in prohibition."
Finally, relator in the instant case does not allege that its merit-rating has been or will be affected by the allowance of Kanz's claim. If that time ever arrives it may assert a remedy at law in resisting the payment of alleged illegal premiums.
The demurrer to relator's petition is sustained and the writ denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
TURNER, J., not participating.