Opinion
No. 29557
Decided November 17, 1943.
Workmen's compensation — Appeal to Common Pleas Court and finding claimant entitled to participate — Industrial Commission to order compensation paid, when — Section 1465-90, General Code.
Where a Common Pleas Court on an appeal from the Industrial Commission, after hearing, finds and certifies the right of a claimant to participate in the state insurance fund, it becomes the duty of the Industrial Commission under the provisions of Section 1465-90, General Code, to "thereupon order compensation to be paid in the manner provided * * * for the payment of other awards." ( State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, and State, ex rel. Moore, v. Industrial Commission, 141 Ohio St. 241, approved and followed.)
APPEAL from the Court of Appeals of Franklin county.
This is an action in mandamus which originated in the Court of Appeals of Franklin county and is in this court upon appeal by the Industrial Commission from the judgment of that court granting the writ.
The relator had filed with the Industrial Commission his application for compensation for an injury which he claimed to have sustained while in the course of employment with an employer who had complied with the provisions of the Workmen's Compensation Act, and claiming further that such injury caused a bilateral inguinal hernia. His application was denied both upon initial presentation and upon rehearing, the final adverse action of the commission being "for the reason that proof of record fails to establish that the bilateral hernia this claimant has is the result of injury alleged to have occurred on May 10, 1938."
An appeal was duly perfected to the Court of Common Pleas of Franklin county. That court, upon hearing, found "upon the issues joined in favor of the plaintiff and that the plaintiff is entitled to participate in the state insurance fund provided for under the workmen's compensation law of Ohio, which finding the court hereby certifies to the Industrial Commission of Ohio."
There was no appeal from this finding and order of the Court of Common Pleas. Thereafter the Industrial Commission made the following finding and order:
"By virtue of the judgment obtained by the claimant in the Common Pleas Court of Franklin county it is the commission's finding from the proof of record that on May 10, 1938, plaintiff sustained an inquinal hernia on both sides during the course of and arising out of his employment but that to date he has lost no time from his work, nor suffered any partial disability because of said injury, in view of which he is not entitled to any compensation at this time.
"It is ordered, however, that an operation be authorized for the correction of the bilateral hernia and that following said operation compensation, medical and hospital expenses be paid in accordance with the medical proof submitted."
Upon motion by the relator for further consideration of his claim, the commission found that inasmuch as the proof failed to show that the claimant had lost any time or suffered any wage impairment as a result of the injury, and further that the proof on file failed to show that the claimant was not physically able to stand the operation for hernia, such motion should be dismissed.
Relator thereafter instituted this action in mandamus wherein he sought an order requiring the respondent to fix the extent of relator's disability from May 10, 1938, the date of his injury, fix the wage impairment of relator and award compensation commensurate with such disability and wage impairment.
By stipulation the entire file of the Industrial Commission covering the claim of the relator, constituting all the evidence considered by the Industrial Commission, was to be considered as the evidence in this proceeding.
Mr. Benjamin F. Hughes, for appellee.
Mr. Thomas J. Herbert, attorney general, Mr. Robbert E. Hall and Mr. Albertus B. Conn, for appellant.
The question presented to the court is whether the facts disclosed by the record show a failure of the Industrial Commission to perform a duty specially enjoined by law and accordingly warranted the issuance of a writ of mandamus.
The Industrial Commission having rejected the claim of the relator upon the ground that his disability was not the result of the injury sustained, the question of the right of the relator to participate in the state insurance fund was submitted to and determined by the Court of Common Pleas upon appeal pursuant to the provisions of Section 1465-90, General Code.
Every defense available against the claim of right to participate in the state insurance fund is involved in such proceeding and, if not presented by the Industrial Commission, must be considered as waived. Therefore, where, upon hearing on appeal, a Common Pleas Court finds and certifies to the Industrial Commission that a claimant has a right to participate in the state insurance fund, it becomes the duty of the commission to award some compensation or benefit. State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572; State, ex rel. Moore, v. Industrial Commission, 141 Ohio St. 241, 47 N.E.2d 767.
The finding of the Industrial Commission that "to date he has lost no time from his work, nor suffered any partial disability because of said injury, in view of which he is not entitled to any compensation at this time," is in direct contradiction of the finding of the Common Pleas Court and disregards entirely the adjudication of that court of the question of the claimant's right to participate in the state insurance fund. The finding and decision of the commission from which appeal had been taken to the Court of Common Pleas was that the claimant was not entitled to participate in the state insurance fund for the reason that his disability was not "the result of injury alleged to have occurred on May 10, 1938."
The Common Pleas Court on appeal found the contrary. Otherwise there would have been no basis for the finding of that court in favor of the claimant's right to participate in the state insurance fund.
Following that action of the Court of Common Pleas and pursuant thereto, it became the duty of the Industrial Commission to put into effect the court's finding and decision. It is provided by Section 1465-90, General Code, as follows:
"If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate or to continue to participate in such fund, the court shall certify such finding or verdict to the Industrial Commission and the commission shall thereupon order compensation to be paid in the manner provided by this act for the payment of other awards." (Italics ours.)
The extent of disability, whether temporary or permanent, as well as the extent of impairment of earning capacity, are matters committed to and are to be determined by the Industrial Commission. The commission has continuing jurisdiction in such cases and is authorized to make future findings and orders as conditions and circumstances require. It is incumbent upon the commission, however, to afford opportunity for the presentation of evidence and therefrom determine the extent of the impairment of the earning capacity of the claimant which existed at the time of the finding and order of the Court of Common Pleas and to make an award in accordance with the provisions of the workmen's compensation law.
The judgment of the Court of Appeals is in all respects affirmed.
Judgment affirmed.
WEYGANDT, C.J., HART, ZIMMERMAN, BELL and WILLIAMS, JJ., concur.
TURNER, J., not participating.