Opinion
Decided December 15, 1930.
Workmen's compensation — Appeal to common pleas court — Section 1465-90, General Code — Application for modification of award denied, and appeal therefrom dismissed — Right of appeal not recreated by filing subsequent modification application.
Where commission dismissed alleged application for modification of award, such dismissal constituting "final disposition of claim," and court dismissed appeal therefrom without prejudice, right thereby lost could not be recreated by subsequent application for modification of award (Section 1465-90, General Code).
ERROR: Court of Appeals for Lucas county.
Mr. R.R. Zurmehly and Messrs. Calkins, Storey Nye, for plaintiff in error.
Mr. Mathias J. Sherman, Mr. J.H. Boyd, Messrs. Cerrezin Wilson and Mr. Forest E. Wilson, for defendant in error.
On January 8, 1923, James Lucas filed with the Industrial Commission an application for compensation for injuries received by him on December 5, 1922, while an employe of the Gendron Wheel Company. Upon hearing thereon, an award was made in his favor ordering compensation to be paid to him until January 16, 1923. On May 7, 1925, the claim was again presented to the commission, and the commission, finding that the claimant was not then suffering any disability resulting from his injuries, ordered that "no further compensation be paid at this time." On June 6, 1925, Lucas filed with the commission an "application for rehearing of claim," in which he stated:
"The Industrial Commission refused him compensation on the ground that `the proof doesn't show you are suffering any disability as a result of injury.' We expect to show that he has a real and permanent disability."
On July 7, 1925, after consideration of this application, the commission held and determined that it was in fact an application for modification of award, and ordered that it be denied. From the action of the commission so taken, Lucas filed an appeal in the court of common pleas, the action so commenced being dismissed without prejudice at plaintiff's costs on May 16, 1927.
On December 27, 1927, Arthur Lucas, as guardian of James Lucas, filed with the commission an application for modification of award. On March 3, 1928, action upon this application was suspended "until claimant files proof in support" thereof. Nothing further having been filed with the commission, the application for modification of the award was dismissed on May 16, 1929. Formal notice of this action of the commission seems not to have been given to claimant or his attorneys until June 27, 1929. On July 11, 1929, an appeal from this order of dismissal was filed in the court of common pleas. A trial was had on April 14, 1930, resulting in a finding by the jury in favor of the claimant. The plaintiff in error seeks a reversal of the judgment entered upon this finding, contending in argument and brief that "the court had no jurisdiction of the subject-matter to render any judgment."
Our conclusion is that the order of July 7, 1925, was a final disposition by the Industrial Commission of the pending claim, and having been so terminated, and the appeal therefrom having been dismissed, the right thus lost may not be recreated by the filing of the later so-called application for modification of award. If the application last made were to be considered as an original application, having no relation to the claim of Lucas for compensation theretofore pending before and finally determined by the commission, then no right of appeal therefrom existed, because no application was filed for a rehearing upon the final order made by the commission, as required by Section 1465-90, General Code, as it then read.
We therefore conclude that no right of appeal existed in favor of defendant in error, and that the court of common pleas did not have jurisdiction to entertain the same.
The judgment is therefore reversed, and the cause remanded to the court of common pleas, with directions to dismiss the action so commenced on the attempted appeal from the decision of the Industrial Commission.
Judgment reversed and cause remanded.
WILLIAMS and RICHARDS, JJ., concur.