Opinion
No. 20821
Decided March 21, 1928.
Workmen's compensation — Claimant entitled to rehearing — Section 1465-90, General Code (110 O. L., 227) — Claim allowed, medical expenses granted and further compensation denied.
A person who is entitled to participate in the state insurance fund and who has filed a claim for injuries sustained in the course of his employment, whose claim has been allowed and medical expenses granted to him and further compensation denied, is not deprived of a right to a rehearing upon said claim by reason of the amendment of Section 1465-90, General Code, passed March 26, 1925. ( Industrial Commission v. Phillips, 114 Ohio St. 607, 151 N.E. 769, approved and followed.)
IN MANDAMUS.
This is an action in mandamus wherein the relator, John Rowlands, seeks to compel the Industrial Commission of Ohio to grant him a rehearing on his claim for continued compensation from the state insurance fund. The facts are not involved, and are as follows:
John Rowlands, on May 27, 1924, while working for the county of Cuyahoga, a contributor to the state insurance fund, was injured in the course of his employment, by falling downstairs in the county jail, the nature of his employment requiring him to make notes of records of inmates of the jail. As a result of such fall the relator claims to have been totally disabled from May 27 to June 17, 1924, at which time he returned to work, continuing in his employment (with the exception of a month's vacation) until November 17, 1924, from which date he claims to have been totally disabled as a result of the accident of May 27.
On May 21, 1926, he filed an application for compensation with the Industrial Commission, at which time the 1925 amendment of Section 1645-90, General Code, was in effect, providing that no appeal to the Court of Common Pleas might be had until a rehearing was granted by the Industrial Commission. The matter was considered by the Industrial Commission, and on the twenty-eighth day of April, 1927, the record of proceedings shows that:
The claim was "submitted upon statement of facts by Mr. Maloney and report of Dr. Seeds. Recommended that the claim be allowed and compensation for temporary total disability be paid to June 17, 1924; that medical expenses be paid covering this period from the date of injury, and that the claim be closed.
"Note. Claimant was paid his usual salary during above period, and there are no bills on file covering above period. There is, therefore, nothing to pay at this time."
It is further shown by the record of proceedings that upon considering the claim the commission took the following action:
"Miss Moriarity moved that this claim be allowed as recommended by Dr. Seeds. That medical expenses be paid as approved and no compensation for the reason that the record indicates claimant was paid his salary during full period of time he was disabled as result of injury."
Within 30 days thereafter, to wit, May 7, 1927, relator filed an application for rehearing, and on September 23, 1927, the commission took the following action:
"Mr. Gregory moved that the application for rehearing filed May 7, 1927, be dismissed, for the reason that the commission has found that it has jurisdiction of the claim and has authority to inquire into the extent of disability and amount of compensation, if any, due; and for the further reason that the application is not accompanied by any proof which warrants further consideration of the claim."
The relator claims that said action of the commission is illegal, and that he has a legal right under Section 1465-90, General Code, to have a rehearing as provided in said section, and prays for this writ of mandamus commanding the respondent to grant such rehearing.
Mr. M.C. Harrison and Messrs. Cerrezin Wilson, for relator.
Mr. Edward C. Turner, attorney general, and Mr. R.R. Zurmehly, for respondent.
The paramount question in this case is whether the amendment of Section 1465-90, General Code (111 Ohio Laws, 227), passed March 26, 1925, effective June 24, 1925, and in force at the time of filing his claim with the Industrial Commission, denies the relator a rehearing, which is the basis of his right to an appeal to the common pleas court, under said section, in the event of a denial of his claim.
The statute (109 Ohio Laws, 296), prior to the amendment, provided as follows:
"The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such commission denies the right of the claimant to participate at all or to continue to participate in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other jurisdictional ground going to the basis of the claimant's right, then the claimant, within thirty (30) days after the notice of the final action of such commission, may by filing his appeal in the common pleas court of the county wherein the injury was inflicted * * * be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it."
Under the law as amended, and as applicable in the case at bar, the provision of the statute is as follows:
"The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon, including the extent of disability and amount of compensation to be paid in each claim, shall be final. In all claims for compensation on account of injury, or death resulting therefrom, if the commission finds that it has no jurisdiction of the claim and has no authority thereby to inquire into the extent of disability or the amount of compensation, and denies the right of the claimant to receive compensation or to continue to receive compensation for such reason, then the claimant may within 30 days after receipt of notice of such finding of the commission, file an application with the commission for a rehearing of his claim, whereupon the former action of the commission thereon shall be vacated and the commission shall fix a date for rehearing * * *."
Epitomizing the same, it is apparent that the old law provided for an appeal when there had been a denial upon any "jurisdictional ground going to the basis of the claimant's right." The new law provides for an appeal where "the commission finds that it has no jurisdiction of the claim and has no authority thereby to inquire into the extent of disability or the amount of compensation, and denies the right of the claimant to receive compensation or to continue to receive compensation." The old law had the phrase, "or to continue to participate." The same phrase is carried into the new law and appears three times in the section in question.
This court, in Industrial Commission v. Phillips, 114 Ohio St. 607, 151 N.E. 769, held:
"Where the Industrial Commission denies an injured employe the right to continue to participate in the state insurance fund, upon the ground that his present physical condition is not attributable to an industrial accident occurring in course of his employment, but to other causes, this is a denial upon a 'jurisdictional ground going to the basis of the claimant's right,' and an appeal lies from such denial to the court of common pleas pursuant to Section 1465-90, General Code."
We can see no language in the new law which denies the applicability of the principle stated in the Phillips case, and our conclusion is that under the facts as disclosed by this record the claimant is not denied, under the present statute, an appeal to the court of common pleas; and to that end he is entitled to a rehearing on the part of the Industrial Commission, and, if the same results adversely to the claimant, he may prosecute his appeal to the court of common pleas if he so desires, pursuant to the terms of Section 1465-90, General Code. The writ of mandamus prayed for will therefore be allowed.
Writ allowed.
MARSHALL, C.J., ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.