Opinion
No. 23367
Decided June 8, 1932.
Workmen's compensation — Mandamus to compel rehearing — Temporary total disability award discontinued, and further compensation denied — Section 1465-90, General Code — Sunday excluded in computing thirty-day limitation, when.
1. Where the Industrial Commission has allowed an employe, injured in the course of his employment, compensation for a temporary total disability and later such employe asks additional compensation for further injury growing out of the same accident, and the commission denies such further compensation on the ground that the claimant's demand is not attributable to the injury sustained in the course of his employment at the time of the accident, for which he has already received compensation for temporary total disability, but due to other causes, such denial is on jurisdictional grounds, and the employe is entitled to a rehearing, and mandamus lies to compel the granting of such rehearing in the event of its refusal by the commission.
2. Where the thirtieth day allowed a claimant, under Section 1465-90, General Code, for filing a motion for a rehearing comes on Sunday, the claimant may file such motion on the following Monday, by virtue of Section 10216, General Code. ( Neiswander v. Brickner, 116 Ohio St. 249, 156 N.E. 138, approved and followed.)
IN MANDAMUS.
This is an action in mandamus, originating in this court, brought on relation of Tony Yance against the Industrial Commission of Ohio, wherein the relator seeks a writ commanding the Industrial Commission to grant relator a hearing on his application for a rehearing in a certain matter pending before the Industrial Commission, being proceeding No. 1059466, instituted October 29, 1926, in the files of the Industrial Commission of Ohio.
A determination of the matter will involve consideration of another proceeding before the Industrial Commission, bearing No. 1008543, instituted September 22, 1925.
It was agreed between counsel for the relator and the respondent, respectively, that the Industrial Commission files in both cases should be submitted to the court as the evidence in the action, and it was agreed that the same shall constitute all the evidence in the case.
Facts disclosed by the record are substantially as follows: The relator, Tony Yance, was an employe of the Jefferson Coal Company's mine, and had been for some time, and while so employed on October 11, 1926, he claims to have been struck in the right eye by a lump of coal, severely bruising and injuring his eye. Being unable to continue his work, on October 29, 1926, as noted above, he filed application No. 1059466 with the Industrial Commission, asking for compensation for his temporary total disability. Such compensation was allowed by the commission and paid to the relator as temporary total disability. On March 21, 1927, an operation was performed upon the relator and the eye was removed. Thereafter, on April 14, 1927, the relator filed an application in the same numbered proceeding with the Industrial Commission, asking for further compensation and also for permanent partial disability for the loss of said eye and its vision, basing his claim on the same accident of October 11, 1926.
A number of affidavits were filed with the commission by members of his family and others, establishing the fact that the relator's eye, prior to the injury of October 11, 1926, had been injured, but that he could see to read a newspaper and that he had at least so-called protective vision therein; that is, he was able to distinguish light from darkness and could see certain objects.
On the other hand, certain medical testimony appears in the record that prior to the date of the injury of October 11, 1926, plaintiff's eye had been injured and that his right eye was sightless.
On July 11, 1928, the Industrial Commission decided to pay claimant for his temporary total disability, but further held "that no permanent partial award be made for enucleation of sightless eye." On July 13, 1928, a notice of said decision of the Industrial Commission was received by the relator. The relator claims that on August 10, 1928, he mailed by registered mail, requesting a return receipt, an application for rehearing by the Industrial Commission, and said return receipt was signed and dated August 11, 1928, by said Industrial Commission of Ohio. The commission takes the position that the application for a rehearing was filed August 13, 1928.
On October 23, 1928, the Industrial Commission took the following action upon relator's application for a rehearing: "On this day the application for rehearing filed August 13, 1928, came before the Commission, was considered and a finding of facts made as follows: 'That application for rehearing be dismissed.' "
It is now necessary to advert to the application made by the relator in cause No. 1008543 in the commission's files, made September 22, 1925, in which relator claimed that he was injured on or about August 15, 1924. The medical report in that case shows, under date of November 20, 1925:
"Claimant alleges that for the last nine (9) years he has been driving a mule in the mine, and that on a number of occasions the mule splashed mud and water in his face. He claimed that he paid no attention to this until about August 15, 1924, when he began to have trouble with his right eye. He was first examined by Dr. Putnam, of Dillonvale, who referred him to Dr. Woodruff, an oculist of Wheeling. Dr. Woodruff reported that the condition he treated was a papillitis of the right eye, and loss of vision of the temporal field. Later the eye became totally blind. Wassermann examination was negative. He was unable to detect any evidences of injury, and it is his opinion that the condition he treated could not be due to the cause alleged. This is also the opinion of Dr. Putnam.
"Basing our opinion on the medical proof on file, we believe that the claimant's loss of vision of the right eye is not due to injury."
On December 10, 1926, this claim was denied in toto by this respondent for the reason that claimant's condition was not caused by the injury.
This claim in cause No. 1008543, as indicated by the dates, was pending and undetermined by the commission when the relator filed his claim in cause No. 1059466, seeking to recover for the injury which he claimed to have taken place on October 11, 1926, by being hit in the right eye by the piece of coal. The history of the proceeding in that application for the injury of October 11, 1926, has been above detailed.
While the evidence is in dispute, the Commission apparently found that the relator sustained an injury, and that such injury caused the infection and consequent loss of the eye, and paid compensation and medical expenses resulting therefrom. The chief conflict on the claim for total loss of vision and enucleation of eye centered around the question whether the vision of the right eye was extinct previous to October 11, 1926. While the commission has allowed compensation for this injury of October 11, 1926, they have denied permanent partial award for the enucleation of the sightless eye; and although application for rehearing has been filed as above indicated, on August 11 or 13, 1928, this application for rehearing has been dismissed by the commission in the order of July 11, 1928, "that no permanent partial award be made for enucleation of sightless eye."
The relator now asks a writ of mandamus, compelling the commission to grant him a rehearing upon that feature of his case.
The pleadings consist of an amended petition, an answer thereto and a reply. In the amended petition the relator claims that by dismissing his application for a rehearing he has been denied and deprived of the right to appeal to the common pleas court, and therefore he asks for a writ of mandamus compelling the commission to grant him such rehearing.
The answer to the amended petition, having made certain admissions, denies each and every allegation in the amended petition contained which the respondent does not admit.
For a second defense it is averred by the respondent that the application for a rehearing was not filed within thirty days.
For a third defense the respondent pleads that the relator is estopped in this proceeding from claiming that the total loss of vision in his right eye is due to the injury of October 11, 1926, because of his claim for the injury of August, 1924.
The reply denies the material allegations of the respondent's amended answer.
Upon the issues thus tendered, the matter is submitted to this court.
Messrs. Gardner Weinman and Messrs. Moreland Moreland, for relator.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for respondent.
The relator in this case was injured October 11, 1926. On October 29, 1926, he filed his claim with the commission. He was allowed compensation for temporary total disability. On March 21, 1927, an operation was performed upon the relator and his eye was removed. The condition requiring such operation, relator claims, was due to his injury of October 11, 1926.
Thereafter, on April 24, 1927, he filed an application for further compensation, asking for permanent partial disability for the loss of the eye. Upon hearing, the commission held, under date of July 11, 1928, "that no permanent partial award be made for enucleation of sightless eye," the position of the commission being that prior to the date of the injury of October 11, 1926, the plaintiff's eye had been injured and that his right eye was sightless. In other words, that the loss of the eye was not attributable to an injury sustained in the course of his employment on October 11, 1926.
The denial of the right to continue to participate was therefore based upon jurisdictional grounds, to wit, that the injury was not sustained in the course of the employment.
It is urged that owing to the fact that the commission had already taken jurisdiction of the claim by allowing temporary total disability its jurisdiction was continuing, and that its finding relative to an application for further compensation was final.
We are of opinion that the commission, by making an award for temporary total disability, cannot entirely foreclose the right of appeal to the courts of this state when the denial of further participation is based upon jurisdictional grounds, which in the present case was that the injury was not attributable to the accident of October 11, 1926. This principle is declared in the case of State, ex rel. Araca, v. Industrial Commission of Ohio, ante, 426, 181 N.E. 870, decided at the present term of this court.
Our attention has been called to the case of State, ex rel. Rowlands, v. Industrial Commission, 118 Ohio St. 475, 160 N.E. 705, in which case Rowlands, on May 27, 1924, was injured in the course of his employment, by falling downstairs in a county building in Cuyahoga county, while in the scope of his employment. As a result of such fall he claimed to have been injured and totally disabled from May 27 to June 17, 1924. On May 6, 1925, Rowlands claimed to have sustained a cerebral hemorrhage as a result of his original injury on May 27, 1924. On May 22, 1926, Rowlands filed an application with the Industrial Commission for compensation. On April 28, 1927, he was allowed temporary total disability up to June 17, 1924, and medical expenses covering this period from the date of the injury. No allowance was made for the claim as to the cerebral hemorrhage sustained in May, 1926, it being the opinion of the medical examiner that "the period following November 17, 1924 (during which time he was totally disabled and during this period suffered a cerebral hemorrhage), is in no way connected with the original injury."
Rowlands filed an application for rehearing on May 7, 1927, and on September 23d this application for rehearing was denied, the commission finding "and for the further reason that the application is not accompanied by any proof which warrants further consideration of the claim."
The Commission refused to give Rowlands a rehearing and mandamus was brought to compel it to do so. This court was of opinion that, the commission having denied compensation for the reason that it found that his disability caused by the cerebral hemorrhage of May, 1925, was not due to the accident of May 27, 1924, it was a denial upon jurisdictional grounds, and the writ of mandamus was allowed.
The foregoing facts are disclosed by the record of that case, although not fully set forth in the reported case, found in State, ex rel. Rowlands, v. Industrial Commission, 118 Ohio St. 475, 160 N.E. 705. The principle of that case is applicable in the present instance.
Our attention has been called to the cases of State, ex rel. Butrant, v. Industrial Commission, 124 Ohio St. 589, 180 N.E. 61, and State, ex rel. Griffey, v. Industrial Commission, 125 Ohio St. 27, 180 N.E. 376; but we do not regard the conclusions reached in those cases as in conflict with this case.
The second question urged by the respondent is that more than thirty days elapsed after the receipt of notice of the refusal to compensate for the loss of vision of the right eye and the removal of the same.
The refusal to compensate was on July 11, 1928. The notice of the decision was received by the claimant, relator here, on July 13th. Relator claims that, according to the registered mail return receipt of the motion for rehearing, as received by the commission, the same appears to be on August 10, 1928; but the matter is indicated by the records of the Industrial Commission as having been received or filed by it on August 13, 1928. Whether received on August 10, 11, or 13, 1928, it was within thirty days, for the reason that the notice of the refusal to compensate was received by the claimant on July 13th. Thirty days thereafter would end on August 12, 1928, which was Sunday. Under the provisions of Section 10216, General Code, the claimant would have the right to file the application on the following Monday, which was August 13, 1928. So that, whether the application was filed on August 11th or August 13th, it was clearly within the thirty-day limitation. Neiswander v. Brickner, 116 Ohio St. 249, 156 N.E. 138.
The final ground of respondent's defense is that the relator is estopped from raising the question of the loss of vision of his right eye due to the injury of October 11, 1926, because in cause No. 1008543, filed in September, 1924, for the claimed injury of August, 1924, it is claimed that the relator offered proof before the commission that he was blind in his right eye. This claim under cause No. 1008543 was disposed of in December, 1926, resulting in a denial of the right of the relator to participate for that injury.
This is the chief issue between the relator and the commission, whether his total loss of vision in right eye was occasioned by the injury of October 11, 1926, or was due to some other cause, not arising in the course of his employment on October 11, 1926.
We consider this issue one of fact, determined by the commission against the relator as a denial upon jurisdictional grounds, and forming the basis of the relator's right to go before a jury and have the same determined. The relator is not estopped from making his claim, and this plea of estoppel does not prevent the writ of mandamus issuing to give the relator a rehearing in the premises.
This record also shows that under date of September 26, 1929, the relator filed with the commission an application for modification of award, but this motion appears never to have been pressed, or passed upon by the commission. Such fact, however, we do not regard as interfering with the right of the relator to press his claim for a rehearing theretofore filed, his claim having been denied upon jurisdictional grounds. The writ of mandamus will be allowed.
Writ allowed.
MARSHALL, C.J., ALLEN, KINKADE and STEPHENSON, JJ., concur.