Opinion
No. 28622
Decided December 17, 1941.
Workmen's compensation — Agreement to waive rights, void — Section 1465-94, General Code — Applies only to agreement made before claim accrued or when consideration nominal — Contract for complete settlement must cover past, present and future disabilities — Mandamus to compel rehearing of application for additional award.
1. Section 1465-94, General Code, providing that no agreement by an injured employee to waive his rights to compensation under the Workmen's Compensation Act shall be valid, applies only to an agreement made prior to the accrual of the claim or cause of action, or to an agreement of waiver or settlement consummated after such date wherein the consideration is merely nominal.
2. Under the Workmen's Compensation Act, disabilities accruing from an injury subsequent to the allowance or denial of an award of compensation for such injury may be considered and compensated by the Industrial Commission within the limitation of time fixed by statute, and a contract, to be effective as a complete settlement of a claim arising under the Workmen's Compensation Act, must expressly cover future as well as past and present disabilities arising out of the injury which is the basis of such claim.
APPEAL from the Court of Appeals of Franklin county.
This is an action in mandamus originating in the Court of Appeals of Franklin county to require the respondent, the Industrial Commission, to grant a rehearing on relator's application for additional compensation beyond the date of the last payment theretofore made under a claim for compensation for personal injuries.
Briefly stated, the petition alleges the following facts:
On January 6, 1936, relator, while employed by a drug company, sustained injuries to his left leg. He filed a claim for compensation, being claim No. 1388591, with the Industrial Commission, which claim was allowed and compensation paid. On January 15, 1937, relator filed an application for modification of the former claim and award, setting out that as a result of the original injury to his left leg, it became necessary on November 20, 1936, to amputate his right leg. The commission denied his application for modification both on original hearing and on rehearing.
Thereupon relator appealed to the Common Pleas Court of Cuyahoga county where he obtained a verdict and judgment, establishing his right to participate in the state insurance fund. An appeal was taken by the commission from this judgment to the Court of Appeals. During the pendency of that appeal, the relator proposed a compromise settlement to the commission. The commission thereupon granted the Attorney General authority to settle relator's claim under the pending appeal for the sum of $4,200, the relator at that time, under the law, being entitled to receive upon successful appeal compensation and expenses in the total sum of $5,278.
"Relator avers that thereupon, on the twenty-second day of May, 1939, the following agreement of settlement relating to his claim arising out of the application to modify the award for the loss of his [right] leg, filed January 15, 1937, was entered into and which provides as follows:
" 'May 31, 1939. The parties hereto agree that the appeal now pending in the Court of Appeals of Cuyahoga county is to be dismissed at the costs of the Industrial Commission of Ohio and that in full satisfaction of the judgment heretofore rendered by the Common Pleas Court and of all claims for compensation, expenses, and fees by reason of claim No. 1388591, the defendant will award the sum of $4,200 to be paid as follows: $3,800 to claimant and $400 to counsel for plaintiff.'
"(Signed) Milton Weinberger, "R.D. Metzner, "Counsel for Claimant. "E.P. Felker, "Assistant Attorney General."
Thereafter the Industrial Commission issued warrants for payment according to the settlement and entered an order of record as follows:
"That claimant be awarded compensation pursuant to the agreement entered into by and between the claimant and Attorney General, to wit: Compensation in amount of $3,800 to claimant and $400 payable to counsel for claimant, Raymond D. Metzner, that said warrants are in full satisfaction of the judgment heretofore rendered by the Common Pleas Court in the appeal of this claimant of all claims for compensation and expenses and fees by reason of this claim, that warrants be issued forthwith to J.H. Davis for delivery."
On or about January 19, 1940, within the period of 10 years as provided by law, the relator filed his application for "additional compensation beyond the date of last payment," setting forth therein the loss by amputation of the other or left leg resulting from the original injury sustained on January 6, 1936, claiming the right to compensation for permanent total disability under the provisions of Section 1465-81, General Code.
The Industrial Commission denied relator further right to participate in the state fund upon a new and changed condition, and on February 14, 1940, dismissed his application. On April 18, 1940, it dismissed his application for rehearing seasonably filed, upon an order or finding that the commission no longer had jurisdiction in the claim by reason of suit settlement.
Relator prayed that a peremptory writ of mandamus be issued requiring the commission to grant a right to rehearing upon his application for further compensation.
The respondent filed a demurrer to relator's petition on the grounds that the petition shows on its face that the court did not have jurisdiction of the subject of the action, and that the petition did not state facts sufficient to show a cause of action. The court overruled the demurrer and granted final judgment to the relator upon the failure of respondent to plead further. Thereupon, respondent appealed as of right to this court on questions of law.
Mr. Robert M. Draper and Mr. Maurice Singer, for appellee.
Mr. Thomas J. Herbert, attorney general, Mr. E.P. Felker and Mr. Thomas F. Joseph, for appellant.
The respondent claims the Court of Appeals erred in overruling its demurrer to the petition for the reason that, since the validity of the settlement contract raised a legal question, the commission had no jurisdiction to determine that issue and was, therefore, not required to grant a rehearing.
In the opinion of this court, the commission had jurisdiction to consider the contract and find that it was valid and broad enough to bar the claim until the contrary was determined. State, ex rel. Fortner, v. Industrial Commission, 126 Ohio St. 554, 186 N.E. 396, and State, ex rel. Fortner, v. Industrial Commission, 127 Ohio St. 289, 188 N.E. 8. This question, however, becomes unimportant in view of the further holding in this case.
The respondent by its demurrer raised the question of the validity of the agreement of settlement entered into between the claimant and the commission on May 22, 1939. The respondent claims that the agreement bars a claim for all disabilities to the relator including such as appeared after the date of settlement as well as those which were known at that time. On the other hand, the relator claims that if the settlement included disabilities which resulted from the original injury but which had not developed and were not taken into consideration at the time of the compromise agreement for settlement, such agreement would be invalid and unenforceable because of Section 1465-94, General Code, the pertinent portion of which reads as follows:
"No agreement by an employee to waive his rights to compensation under this act shall be valid, except that an employee who is blind may waive the compensation that may become due him for injury or disability in cases where such injury or disability may be directly caused by or due to his blindness. * * *"
This statute limits the right of contract, is in derogation of the common law and therefore must be strictly construed. In express terms it inhibits a contract of waiver of rights under the Workmen's Compensation Act but does not, in terms, render invalid a contract of settlement for compensation under the act. The right to settle a claim or cause of action after it has accrued is incidental to and necessarily included in the right of the claimant to assert his claim or prosecute a cause of action on such claim in a court or other tribunal having jurisdiction of the same. Therefore, the statute providing that no agreement by an employee to waive his rights to compensation under the Workmen's Compensation Act shall be valid, applies only to an agreement made prior to the date when the claim or cause of action accrued or to an agreement of waiver or settlement consummated after such date wherein the consideration is merely nominal. Industrial Commission v. Broskey, 128 Ohio St. 372, 191 N.E. 456; Adler v. Hohn, 129 Ohio St. 303, 195 N.E. 481 (affirming Hohn. v. Adler, 49 Ohio App. 381, 197 N.E. 229). Especially have such settlements been regarded as valid when approved by the Industrial Commission. State, ex rel. Fortner, v. Industrial Commission, supra.
The case at bar is to be distinguished from the case of State, ex rel. Rojc, v. Industrial Commission, 133 Ohio St. 131, 12 N.E.2d 411, wherein the claimant waived his claim for compensation after it had accrued but for a nominal consideration of five dollars. This could not be construed as a contract for compensation. See, also, Dotson v. Procter Gamble Mfg. Co., 102 Kan. 248, 169 P. 1136.
The remaining question is whether the settlement covered disabilities which resulted from the original injury but which did not develop until after the date of the settlement contract. It is to be noted that the settlement comprehended a compromise of a judgment or award theretofore entered by a court of competent jurisdiction. If this judgment had resulted from a common-law action it would have been a bar to all subsequent claims for injury or disabilities arising from the same wrong or cause of action.
The generally accepted rule is that a personal injury caused by a single tortious wrongful act of negligence is an entirety, affords ground for only one action, and cannot be split up in order to bring separate actions for different elements of damages. 1 American Jurisprudence, 493, Section 111; annotations L.R.A. 1916B, 743; Sturges v. Burton, 8 Ohio St. 215; Ewing v. McNairy Clafflin, 20 Ohio St. 315; Covington Cincinnati Bridge Co. v. Sargent, 27 Ohio St. 233; Petersine v. Thomas, 28 Ohio St. 596, 599; James v. Allen County, 44 Ohio St. 226, 6 N.E. 246; City of Cincinnati v. Emerson, 57 Ohio St. 132, 48 N.E. 667; Fowle v. New Haven Northampton Co., 112 Mass. 334; City of Ardmore v. Orr, 35 Okla. 305, 129 P. 867.
While a claim under the Workmen's Compensation Act is a single unit though there may be several distinct disabilities arising thereunder, the rule of single recovery or award has no application. The Industrial Commission has continuing jurisdiction of claims within the ten-year period prescribed by Section 1465-86, General Code, and may modify and increase allowances for compensation whenever further disability develops or accrues. Section 1465-86, General Code; Snyder v. State Liability Board of Awards, 94 Ohio St. 342, 114 N.E. 268; State, ex rel. Griffey, v. Industrial Commission, 125 Ohio St. 27, 180 N.E. 376; Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449. This being true, the question remains as to whether the settlement contract covered the subsequently discovered disability which accrued as a result of the amputation of relator's left leg and thereby foreclosed the authority of the commission to modify the former order and finding based upon the injury to one leg only.
It is apparent that the parties at the time the settlement contract was made and carried out did not have in contemplation the possibility of damage to the left leg which resulted in its amputation. The contract specifically referred to the settlement and "full satisfaction of the judgment heretofore rendered by the Common Pleas Court and of all claims for compensation * * * by reason of claim No. 1388591," which the petition discloses did not comprehend or relate to disability of the left leg. The claim, as then filed and considered, did not disclose any disability of the left leg, did not demand compensation on acount of any such disability, and no such disability was in the mind of the parties or taken into consideration when making the settlement. Up to that time, the claim was based on partial disability (loss of one leg, Section 1465-80, General Code); while that claim as now prosecuted is based upon permanent total disability (loss of both legs, Section 1465-81, General Code), and in case the latter claim is established, the claimant, under the statute, is entitled to a different and much larger award than that allowable to him at the time of settlement.
The contract does not refer to or expressly cover subsequent accruing disabilities and, in the opinion of a majority of the court, does not constitute a release or settlement as to them. The commission therefore should consider relator's application for a modification of the award. The demurrer to relator's petition was properly overruled. The writ, therefore, should have been allowed.
Judgment affirmed.
WILLIAMS, ZIMMERMAN and BETTMAN, JJ., concur.
WEYGANDT, C.J., TURNER and MATTHIAS, JJ., dissent.