Opinion
No. 33345
Decided June 3, 1953.
Workmen's compensation — Claim, not filed within two-year period, barred — Section 1465-72a, General Code.
APPEAL from the Court of Appeals for Lucas county.
The plaintiff filed with the Industrial Commission a claim for workmen's compensation for an injury, and he was paid compensation therefor. More than two years after the injury, plaintiff filed with the commission an application for compensation beyond the date of last payment and for modification of award, claiming injury to his back. The commission, on rehearing and in denying the claim, made the following order:
"It is recommended that this claim be denied on rehearing for the reason that the proof on rehearing fails to show that the claimant has offered any proof in the rehearing record to show that any disability which he has in his back is the result of the injury to his knees and the fracture of right fibula sustained on July 28, 1942.
"The commission is without jurisdiction to consider any claim for injury to claimant's back on July 28, 1942, for the reason that the proof of record fails to show that the claimant ever made any application to the commission or to the employer for compensation based upon an injury to his back within two years after July 28, 1942.
"The commission makes no finding with respect to the disability in the claimant's knees and lower legs for the reason that such disability has been recognized by the commission and compensation paid therefor and such disability is not an issue in this rehearing."
Plaintiff filed a petition and amended petition in the Common Pleas Court on appeal from the order of the commission rejecting the claim. A demurrer to the amended petition, on the ground of want of jurisdiction and that the petition does not state facts which show a cause of action, was sustained and, plaintiff not desiring to plead further, the action was dismissed and judgment was entered for defendants.
The Court of Appeals, on appeal, reversed the judgment and remanded the cause to the trial court with directions to overrule the demurrer and for further proceedings.
The cause is before this court for review, a motion to certify the record having been allowed.
Messrs. Reams, Bretherton Neipp, for appellee.
Mr. William J. Higley and Mr. John E. English, for appellants.
It is apparent from the order of the Industrial Commission, quoted in plaintiff's petition, that the claim plaintiff is now presenting is for a new and distinct injury, for which no application for compensation was made within the two-year period prescribed by Section 1465-72 a, General Code.
The trial court was correct in sustaining the demurrer and rendering judgment for defendants. The reversal of that judgment by the Court of Appeals was error. State, ex rel. Bernhardt, v. Industrial Commission, 127 Ohio St. 582, 190 N.E. 224, approved and followed, and Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449, overruled.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.