Opinion
No. 29995
Decided October 11, 1944.
Workmen's compensation — Adjudication awarding compensation for definite period — Section 1465-90, General Code (109 Ohio Laws, 296) — Not res judicata in subsequent proceeding for permanent and total disability compensation.
An adjudication awarding workmen's compensation for disability not permanent and total, for a period expiring at a certain time, whether before or after the rendition of the judgment, is not res judicata in a subsequent proceeding brought to obtain an award of compensation for permanent and total disability which existed after the expiration of that period.
APPEAL from the Court of Appeals of Franklin county.
On February 25, 1943, H.C. Cramer, plaintiff in the trial court, appellee herein, filed with the Industrial Commission of Ohio, defendant in the trial court, appellant herein, his application for additional workmen's compensation. It is not disputed here that in 1943 the commission made the following order:
"That the commission find they are without jurisdiction to consider claimant's application for additional compensation filed February 25, 1943, and claimant's application for lump sum settlement requesting $4000 by way of settlement, for the reason that the commission's jurisdiction with respect to this claim was terminated by settlement of this claim by proceedings on appeal in the Common Pleas Court of Franklin county, Ohio, in case No. 139190 on the docket of said court."
On April 29, 1943, the plaintiff filed his petition on appeal in the Court of Common Pleas of Franklin county, seeking compensation for permanent and total disability for a period beginning September 15, 1938.
Upon trial to the court, no jury having been demanded, it was shown that on July 11, 1922, the plaintiff, while acting in the course of his employment, sustained the injury involved herein, and that on February 26, 1935, in a former proceeding on appeal to Court of Common Pleas of such county — Case No. 139190, which related to compensation for the same injury and is referred to in the above quotation — the following judgment was entered:
"This day this cause having come on to be heard on the pleadings and the evidence, and the cause was submitted to the court, the court after consideration of same finds the issues in favor of the plaintiff and that the plaintiff is entitled to participate in the state insurance fund at the rate of five ($5) [dollars] per week for a period of six hundred and sixty six (666) weeks commencing the first day of January, 1926."
Thereupon on February 2, 1944, the trial court in the present cause found "that the plaintiff is permanently and totally disabled as a result of the accident of July 11, 1922," and granted "judgment in favor of the plaintiff and against the defendant in the sum of fifteen ($15) dollars per week from the twenty-fifth day of February, 1941, for the balance of his natural life or so long as he continues to be permanently and totally disabled."
From this judgment an appeal was taken by the defendant to the Court of Appeals. That court affirmed the judgment and this court allowed defendant's motion to certify the record.
Mr. John M. Collins, for appellee.
Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for appellant.
The sole question presented is whether the claim of plaintiff for permanent and total disability for a period subsequent to September 15, 1938, is barred by the judgment in the prior case by which he was allowed $5 per week for a period of 666 weeks, extending from January 1, 1926, to September 15, 1938.
The courts below, in holding that the claim of plaintiff was not barred, based their decisions on the fourth paragraph of the syllabus in Clendenen v. Industrial Commission, 140 Ohio St. 414, 45 N.E.2d 108, which reads thus:
"An appeal to the Court of Common Pleas by a claimant for workmen's compensation under Section 1465-90, General Code, as it read in 1918 (107 Ohio Laws, 162), in which judgment was awarded the claimant for disabilities accruing up to the time thereof, is not a bar to further consideration by the Industrial Commission or by the Court of Common Pleas on a proper appeal for disabilities accruing from the original injury subsequent to the date of such judgment."
Section 1465-90, General Code, was amended in 1919 (108 Ohio Laws, 322) and in 1921 (109 Ohio Laws, 296). The latter amendment was in force at the time of plaintiff's injury in 1922. Insofar as the instant case is concerned the applicable provisions are the same as in 1918. Therefore the Clendenen case is determinative of the rights of the parties, unless it can be distinguished. Counsel for defendant maintain that there is a distinction and, after quoting the fourth paragraph of the syllabus in their brief, continue with this statement:
"It is our contention that the language emphasized in the above syllabus sets forth a factual element that was present in the Clendenen case which is not present in the case at bar, namely, the judgment awarded by the Court of Common Pleas in Cause No. 139190, was not alone for disabilities which accrued up to the time of the judgment, but it was a judgment which extended the plaintiff's compensation for a substantial period in the future."
Such an award is subject to the provisions of Section 1465-86, General Code, in respect to the continuing jurisdiction of the commission and can be modified by the commission when such a course is warranted by the facts. Roma v. Industrial Commission, 97 Ohio St. 247, 119 N.E. 461. As a consequence the defense of res judicata has only a limited application to compensation cases. But in the instant case there was no modification of the former judgment in a strict sense. It was paid in full as rendered. There was a modification in the sense that additional compensation was afterwards awarded to the plaintiff. The fact that the prior judgment covered a period that extended into the future does not of itself make such judgment res judicata as to a subsequent award of compensation for a later period. From the small weekly payments adjudged in the former action and the limited time fixed for their payment, it is apparent that the judgment did not cover permanent and total disability. Assuredly an adjudication, awarding compensation for disability, not permanent and total, for a period expiring at a certain time, whether before or after the rendition of the judgment, is not res judicata in a subsequent proceeding brought to obtain an award of compensation for permanent and total disability which existed after the expiration of that period. The Clendenen case governs.
The claim of plaintiff is not barred by the former adjudication and therefore the judgment of the Court of Appeals is affirmed.
Judgment Affirmed.
HART, ZIMMERMAN, BELL and TURNER, JJ., concur.