Opinion
No. 27645
Decided March 27, 1940.
Workmen's compensation — Accidental injury by elements or forces of nature — Freezing compensable as hazard of employment, when — Original application for compensation may be amended, how — Disability developing two years after original injury, compensable, when — Section 1465-72a, General Code.
1. Accidental injury by the elements or forces of nature is received in the course of and arises out of the employment where the injured employee is subjected to a greater hazard in his employment than that to which other persons in the same locality are subjected; this principle applies to accidental injury by freezing in cases in which the peculiar danger to the injured employee from exposure to cold weather compelled by his employment, is a hazard greater than that encountered generally by others exposed to the cold in the particular community.
2. An original application for workmen's compensation filed with the Industrial Commission may be amended as a matter of course and this amendment may be accomplished by an amended or supplemental application or an application to modify an award upon the development of a subsequent disability arising from the original accident and out of an injury sustained therein, whether or not it is included among the injuries described in the original application.
3. An injured employee, who, after being awarded compensation and more than two years after the original injury, files an application for modification of the award in order to secure compensation for subsequently developing disability directly caused by injury sustained in the original accident but not described in the original application, is not barred of his right to continue to participate in the State Insurance Fund by virtue of Section 1465-72 a, General Code, which prescribes that claims for compensation for injuries are barred unless application is made to the Industrial Commission within two years after the injury.
APPEAL from the Court of Appeals of Franklin county.
For a long period of time, including the year 1929, the plaintiff, August J. Kaiser, was employed by the Pure Oil Company at its filling station at the corner of Grant avenue and East Broad street in the city of Columbus, Ohio. On June 1, 1931, he filed an application with the Industrial Commission of Ohio for compensation under the Workmen's Compensation Law, for the freezing of his right foot but no claim was made as to his left foot. Thereupon the commission allowed the claim and until August 13, 1933, paid compensation for disability arising from the freezing of the right foot.
On February 10, 1936, disability having developed in his left foot, plaintiff filed with the Industrial Commission an application to modify the award and allow compensation for the freezing of his left foot. The commission upon rehearing refused a separate application for leave to amend the original application by setting out the freezing of the left foot, and denied the application for modification upon the ground that no claim for compensation for freezing of his left foot had been made within the statutory period of two years.
Plaintiff filed a petition on appeal in the Court of Common Pleas of Franklin county, Ohio, and a jury being waived the cause was tried to the court which after making a separate finding of facts entered judgment for the defendant.
The evidence discloses that the left foot became gangrenous from the freezing, necessitating an amputation of the toes in March, 1937, and later of the left leg above the knee.
The trial court found that the plaintiff froze his feet in the year 1925 but made no application to the Industrial Commission of Ohio for compensation therefor; that on December 24, 1929, he again froze both his feet while working at the filling station of the Pure Oil Company, his employer, and that he was at that time and place "subjected to a greater hazard from the cold because of the nature of his work and in his confinement thereto than other persons were subjected to at said time in the same community who happened to be outdoors"; and that therefore the plaintiff sustained an injury to both feet by freezing which arose out of and in the course of his employment; but the trial court rendered judgment for the defendant upon the sole ground that application for compensation for freezing the left foot was not filed within two years after the injury.
Judgment for the defendant was affirmed by the Court of Appeals. The cause is now in this court for review by allowance of a motion to certify the record.
Messrs. Boyd Boyd, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Edward P. Felker and Mr. Thomas B. Paxton, for appellee.
Accidental injuries due to the elements or forces of nature have been held compensable when suffered by employees exposed to a greater hazard by virtue of their employment than were other persons in the locality. Industrial Commission v. Carden, 129 Ohio St. 344, 195 N.E. 551; Industrial Commission v. Hampton, 123 Ohio St. 500, 176 N.E. 74; Slanina v. Industrial Commission, 117 Ohio St. 329, 158 N.E. 829; 42 Ohio Jurisprudence, 657, Section 70. This principle has been applied to accidental injuries from freezing when the exposure to cold weather which the employee was compelled to undergo in his employment was a risk greater than that encountered generally by others exposed to the cold in the particular community. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320; Gibbons v. United Electric Rys. Co., 48 R.I. 353, 138 A. 175; McManaman's Case, 224 Mass. 554, 113 N.E. 287; State, ex rel. Virginia Rainy Lake Co., v. District Court, 138 Minn. 131, 164 N.W. 585; State, ex rel. Nelson, v. District Court, 138 Minn. 260, 164 N.W. 917. Compare Brady v. Oregon Lumber Co., 118 Ore., 15, 245 P. 732; Ellington Lumber Co. v. Industrial Commission, 168 Wis. 227,169 N.W. 568; Eagle River Building Supply Co. v. Industrial Commission, 199 Wis. 192, 225 N.W. 690.
In weighing the hazard to the employee in comparison with others similarly situated to determine whether injury by freezing is an accidental happening warranting the allowance of compensation, his peculiar amenability to frostbite either from an idiosyncracy or physical weakness of his own or from the insufficiency of clothing or other protection or from other circumstances under which he was compelled to work, are subjects of inquiry. In the instant case the plaintiff, being peculiarly susceptible to frostbite on account of the sensitiveness of his feet due to their previous freezing, was forced out into the cold continuously for a long period of time in servicing cars that came to the filling station for that purpose. The freezing was a fortuitous event peculiar to the situation in which the plaintiff found himself by reason of his employment. Plaintiff's hazard was therefore different from that of people generally who happened to be out of doors in the locality. Under the circumstances the trial court was warranted in finding that the injury by freezing was sustained in the course of and arose out of plaintiff's employment.
On this finding of the trial court the plaintiff is entitled to a final judgment herein allowing him to participate in the State Insurance Fund for the freezing of the left foot unless his claim therefor is barred by lapse of time.
The controlling question, therefore, is whether the trial court committed error in rendering judgment for the defendant on the sole ground that plaintiff's claim was barred by the statutory limitation of two years fixed by Section 1465-72 a, General Cade, which provides:
"In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the Industrial Commission of Ohio or to the employer in the event such employer has elected to pay compensation direct."
It will be observed that this provision does not require the application to be in writing; in fact it has been held that in asserting a claim against a self-insuring employer the employee's application may be oral. Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N.E. 790. Moreover it is not contended that there is any statute requiring the application to state the full extent of injuries. In fact it often happens that the claimant does not know, at the time of his application, how badly he is hurt. The intent of the Workmen's Compensation Law appears to be to allow full scope to the commission in inquiring into the injuries and determining the amount of compensation to which the claimant is entitled so as to avoid injustice.
Under Section 1465-91, General Code, which applies to all stages of the proceedings before the commission except the rehearing, the commission is not bound by any technical or formal rules of procedure. Surely under this rule of liberality an application need not set out all the facts necessary to show that claimant is entitled to compensation or to show the full extent of the injury or disability.
When an employee makes an application to the commission for compensation it is the duty of the commission to inquire whether there is causal connection between the employment and the injury, and, if it finds there is, to assume jurisdiction and determine the extent of the disability directly caused by the injury. In awarding compensation the commission is not limited to injury specified in the application but is required to base the award upon all injuries sustained in the particular accident for which claim is made. Any other course would result in depriving many injured employees of compensation to which they are entitled.
In order that complete justice might be meted out to every claimant for compensation broad authority was given to the commission. When that body once assumes jurisdiction of a claim for injury of an employee in the course of his employment, that jurisdiction is continuing with power to make such modification of its former findings from time to time as it may deem justified subject only to the ten-year limitation prescribed in Section 1465-86, General Code. Under the application of this principle it is established that a supplemental application or application for modification of an award to secure compensation for a subsequently developing disability may be filed after the expiration of the two-year period. Humphries v. Wheeling Steel Corp., 132 Ohio St. 263, 7 N.E.2d 230; Metal Specialty Co. v. Gregory, 128 Ohio St. 452, 191 N.E. 701; State, ex rel. Griffey, v. Industrial Commission, 125 Ohio St. 27, 180 N.E. 376; Industrial Commission v. Klaff, 123 Ohio St. 451, 175 N.E. 697. Compare State, ex rel. Cezkovsky, v. Industrial Commission, 126 Ohio St. 434, 185 N.E. 807. In none of these cases, however, was the contention made that the subsequent disability arose out of an injury not described in the original application.
It is logical then to inquire whether actual amendment of the original application was essential and to determine the effect of filing an application to modify the award. The plaintiff did make application to amend the original application at the rehearing before the commission and if such amendment were held to be necessary there seems to be no reason why it could not be made after the two-year period. A petition in a civil action may be amended after the running of the statute of limitation provided the cause of action is not changed, upon the theory that the amended pleading relates back to the commencement of the action. Louisville Nashville Rd. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876. Under this rule a petition may be amended after the statutory period by the averment of additional injuries. If a petition, which is governed by the more or less technical rules of pleading, may be so amended, a fortiori, an application for compensation not governed by technical rules may be.
Ordinarily there is no need for an amendment or for a new application where the original application is wrong or incomplete, and the commission has taken jurisdiction of the claim but has not yet made an award; but occasions may arise in which an amendment may be necessary by reason of a mistake or incompleteness in the original application. In such cases an amended application or an amendment to the application may be filed.
Amendment in civil actions, however, is somewhat different from the amendment in compensation proceedings. The amendment of a pleading may ordinarily be made only on leave of court in furtherance of justice; on the contrary the claimant, by reason of the continuing jurisdiction of the commission, may as a matter of course make new applications from time to time to invoke the action of that administrative body in the exercise of that jurisdiction so as to do justice to the claimant.
In addition to the request to amend, the plaintiff sought what was in effect the same end by his application for modification based on the freezing of the left foot, for such an application is in reality in the nature of an amendment to the original application when the former is based on injuries which were not mentioned in the latter but were actually sustained in the original accident. Giving a liberal construction to all the statutory provisions, we are forced to the conclusion that, when the application for compensation is filed and the commission takes jurisdiction, that jurisdiction is to continue as to all injuries which grew out of the original accidental injury whether fully specified in the original application or not and that after jurisdiction attaches it is continuous as to all injuries and disabilities caused thereby for the full ten-year period prescribed by Section 1465-86, General Code.
In the instant case the continuing jurisdiction of the commission gave it authority and imposed on it the duty to determine the extent of the disability arising from accidental injury by freezing in the one occurrence upon which the original application was based; and when subsequent disability developed in plaintiff's left foot he could by way of amendment make a supplemental application or an application for modification of the award in the same proceeding claiming such disability was directly caused by the original injury without any actual amendment or change of the original application by setting out an injury to the left foot as well as to the right foot. To hold otherwise would be to apply technical rules to the application and deny continuing jurisdiction.
Since the finding of facts made by the trial court shows as a matter of law that plaintiff is entitled to further participate in the State Insurance Fund by reason of the freezing of his left foot, the judgments of the courts below are reversed and the cause is remanded with directions to render judgment in favor of the plaintiff and to enter an order for attorney fees.
Judgments reversed.
DAY, MYERS and HART, JJ., concur.
The finding and judgment of the Court of Common Pleas affirming the finding and order of the Industrial Commission was approved and affirmed by the unanimous concurrence of the Court of Appeals. The judgment in each instance was based upon the conclusion that the claim now presented is for a new and distinct injury and is therefore barred by the provisions of Section l465-72 a, General Code. Such holding is in accord with the unanimous decision of this court in the case of State, ex rel. Bernhardt, v. lndus trial Commission, 127 Ohio St. 582, 190 N.E. 224. The announced departure therefrom will not serve to promote the orderly and expeditious administration of the Workmen's Compensation Fund.
The judgment should be affirmed.
WEYGANDT, C.J., and ZIMMERMAN, J., concur in the foregoing dissenting opinion.