Opinion
No. 25327
Decided December 18, 1935.
Workmen's compensation — Industrial Commission to keep record showing reason for allowing or rejecting claim — Section 871-9, General Code — Mandamus — Court may examine commission's record to ascertain nature of order and pending claim — Assumption that commission considers all claims pending in case when order made — Application for modification of award does not revest rehearing right, when.
1. Under the provisions of Section 871-9, General Code, the Industrial Commission of Ohio is required to keep a public record showing not only its proceedings, findings and awards, but also "the reason or reasons for the allowance or rejection" of each compensation claim presented for its consideration.
2. When, in an original action in mandamus, it is claimed that the Industrial Commission has made an order with reference to a compensation claim but has failed to state the reason or reasons therefor, a court may examine the commission's records for the purpose of ascertaining the nature of the order and of the claim then pending before the commission. (Paragraph three of the syllabus in the case of State, ex rel. Araca, v. Industrial Commission, 125 Ohio St. 426, 181 N.E. 870, approved and followed.)
3. In the absence of evidence to the contrary, it will be assumed that the Industrial Commission gives consideration to all claims pending before it in each case at the time an order is made.
4. Upon failure to file an application for rehearing within the statutory period of thirty days after notice of the dismissal of his application for modification of award, a claimant cannot revest himself of his lost right by resort to a subsequent application for a modification of award involving the same claim. (Paragraph two of the syllabus in the case of State, ex rel. Randolph, v. Industrial Commission, 128 Ohio St. 27, 190 N.E. 217, approved and followed.)
IN MANDAMUS.
This is a mandamus action addressed to the original jurisdiction of this court.
In his petition the relator alleges that while at work as an employee of the Cleveland Tractor Company on December 12, 1928, he sustained severe injuries to his right ankle in the form of bruises, contusions and a sprain; that thereafter on February 7, 1929, he filed with the respondent commission an application for the allowance of compensation and medical expenses; that his application was allowed; that he was paid compensation in the sum of $57.61 for temporary total disability for the period beginning December 19, 1928, and ending January 10, 1929; that subsequently on June 4, 1929, his right leg was amputated; that three years and two months later on August 2, 1932, he filed with the respondent an application for modification of award wherein he asked compensation for permanent partial disability in the loss of his right leg as a result of the injuries he received on December 12, 1928; that a hearing was had thereon; that thereafter on January 13, 1933, the respondent ordered "that the present application for modification of award be dismissed"; that on February 4, 1933, he filed an application for a rehearing of his application for modification; that on March 26, 1934, the respondent ordered "that the application for rehearing be dismissed"; and that the dismissal of the application for modification was made upon jurisdictional ground. The prayer of the petition asks a peremptory writ compelling the respondent to assume jurisdiction of the application for rehearing and to conduct a rehearing of relator's claim of permanent partial disability.
The respondent's answer asserts two defenses. The first admits that on December 12, 1928, the relator received an injury for which compensation was asked, allowed and paid. The other allegations of the petition are denied. In its second defense the respondent avers in part as follows:
"Defendant further says that the application in this claim was filed on February 7th, 1929; that said application was signed by the plaintiff and set forth therein the injury sustained as consisting of 'sprain and contusion of the right ankle'; that said application showed that the plaintiff resumed work on January 11th, 1929, and that when the claim came on for hearing before the Industrial Commission compensation was awarded and paid to said date; that on March 20th, 1931, a physician, but not the physician who attended claimant at the time of the injury, advised the defendant that plaintiff was disabled because of amputation of right foot which had been caused by diseased condition of the bone, which statement was filed in connection with an application for modification of award also filed on said date, in which application the claimant asked for additional compensation over the amount that had been paid; that the defendant had the claim investigated in connection with its consideration of said application for modification of award and secured affidavits and statements which disclose that the amputation was of the right leg just below the knee, and the information from the attending physician at the time of the injury was to the effect that claimant had a bad case of tuberculosis at that time.
"Defendant further says that the matter came on for consideration on May 13th, 1932, on the question of whether or not claimant was entitled to further compensation because of the condition resulting from the amputation of the leg, at which time the Commission made the following order: 'After conference with Dr. Dorr, the Commission orders application for modification of award be dismissed.' Thereby denying claimant compensation for the disability from which he was suffering at that time; that notice of said action was given relator on May 18th, 1932, and that no application for rehearing was filed in connection with said order; that on August 2nd, 1932, plaintiff filed another application for modification of award claiming compensation as in his former application, and on January 13th, 1933, this defendant ordered that said application for modification of award be dismissed for the reason that the order of the Commission of May 13th, 1932, was based upon the same condition as was before the Commission at that time, and that the Commission had denied compensation then and no application for rehearing had been filed, and that, therefore, the Commission was merely being called upon to again pass upon the same question.
"Defendant further says that notice of such action was given to claimant on January 17th, 1933, and on February 4th, 1933, plaintiff filed an application for rehearing, which was dismissed by this defendant on March 26th, 1934."
In his reply the relator admits the respondent's order of May 13, 1932, and the notice with reference thereto. He then denies the other allegations of the second defense. The reply concludes with the following paragraph:
"Relator says further that the application for modification of award filed by him with the Industrial Commission of Ohio on the 2nd day of August, 1932, as set forth in the petition filed in this cause, was the first application made by relator for compensation for loss of his right leg, as set forth in said petition; and relator says that said application for modification of award filed by him with the Industrial Commission of Ohio on the 2nd day of August, 1932, was the first application for permanent partial disability filed by him with the Industrial Commission; that the defendant, the Industrial Commission of Ohio, did not, at any time prior to the filing of said application for modification of award, consider or pass upon the right of the relator to receive compensation for such disability as set forth and claimed by him in said application for modification of award; and that the defendant, Industrial Commission of Ohio, did not, at any time prior to the 13th day of January, 1933, as set forth in the petition herein, deny the right of the relator to receive compensation claimed by him upon a jurisdictional ground or upon any finding that it had no jurisdiction to inquire into the amount of compensation due to the relator by reason of the loss of his right leg."
With the issues thus joined counsel have presented the case by offering in evidence the records of the respondent commission relating thereto.
Messrs. Woodle Wachtel and Mr. Martin L. Rehmar, for relator.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
This controversy results largely from the unfortunate dereliction of the then counsel for the relator in failing to file an application for rehearing after dismissal of the first application for modification of award. It is agreed that on May 18, 1932, the respondent mailed to the relator the required notice of the dismissal of that application for modification of award. Thereafter on June 16, 1932, counsel wrote a letter inquiring whether an application for rehearing had been filed; and more strangely still, after this apparent recognition of the necessity for filing such an application, no further action was taken until after the statutory thirty-day period had elapsed when on August 2, 1932, the second application for modification of award was filed. Confronted with this dilemna present counsel for the relator seek to extricate their client from the difficulty by disregarding the first application for modification of award. It is their theory that the two applications for modification of award involve different matters. They insist that the second application related to the leg amputation, and that the first did not. They urge also that the commission did not consider the matter of his leg amputation until he filed his second application for modification of award. They contend further that the second application was dismissed on a jurisdictional ground, and that the first was not, thereby making it unnecessary to file an application for a rehearing of the first, as was done with reference to the second.
Counsel for the respondent commission concede that the orders of dismissal are unfortunately not as specific as they could and should be under the provisions of Section 871-9, General Code, but they insist that according to the commission's records the leg amputation was involved in the first application for modification and was considered by the commission at the time this application was dismissed on May 13, 1932. They contend further that this dismissal was upon a jurisdictional ground.
To this the relator rejoins that this court is permitted to consider no part of the commission's records except the orders made; and he further insists there can in any event be no presumption by this court that the commission considered all matters then before it.
Possibly it should first be observed that the limited wording of the orders dismissing the two applications for modification is of no assistance whatsoever in reaching a decision in this case. The first provides simply that "after conferring with Dr. Dorr, the Commission orders application for modification of award be dismissed." The second reads "that the present application for modification of award be dismissed."
Next it should be noted with equal regret that the applications themselves are in no wise decisive of the controversy. The second is specific in stating that "I have not been compensated for the loss of my right leg"; but the first contains merely the general statement "that he has suffered disability far in excess of that recognized by compensation paid. My attending physician reported me unable to resume employment January 21, 1929, and you only paid compensation to January 10, 1929."
In this sort of predicament must recourse be had to the always unsatisfactory expedient of presumptions alone, or may consideration be given to the actual facts as disclosed by an examination of the commission's records, especially since this is an original action and not a proceeding in error? This question necessitates a reexamination of several decisions of this court. In his opinion in the case of Noggle v. Industrial Commission, 129 Ohio St. 495 ( 196 N.E. 377), on page 503 Judge Jones says: "The same conclusion is also supported by the following recently decided cases holding that the right of appeal depends upon the fact whether the record and final order of the commission disclose that its denial of claimant's right to receive compensation is based upon a finding that the commission has no jurisdiction of the claim." However, his language was not incorporated in the court's syllabus. One of the cases to which he refers is that of Metal Specialty Co. v. Gregory, 128 Ohio St. 452, 191 N.E. 701, in which Judge Bevis states in his opinion that "in determining the legal effect of an order of the commission the court will look not alone to the order itself, but to the entire record." Again this language does not appear in the syllabus. Another case cited is that of State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691. In his opinion Judge Wilkin states that "the facts of the case are decisive," that "the issue cannot be determined entirely by the order of the commission," and that an order of the commission is appealable "if the facts of the case show that the denial of the right to continue to receive compensation was based upon a want of jurisdiction and authority to award compensation." Later he says further that "the reason for the denial is a jurisdictional fact, and like any other essential fact, when placed in issue, must be proved." But none of these statements was carried into the syllabus. Likewise in his opinion in the case of State, ex rel. Randolph, v. Industrial Commission, 128 Ohio St. 27, 190 N.E. 217, Judge Matthias observes that "whenever in an action similar to this the question has been presented whether a denial of compensation by the commission was upon jurisdictional grounds, going to the basis of the claimant's right, this court has considered the entire record before the Industrial Commission to determine that question." But again the syllabus does not incorporate this language. Furthermore, in other cited cases such as State, ex rel. Cezkovsky, v. Industrial Commission, 126 Ohio St. 434, 185 N.E. 807; Industrial Commission v. Phillips, 114 Ohio St. 607, 151 N.E. 769, a similar situation obtains. However, in his opinion in the case of State, ex rel. Araca, v. Industrial Commission, 125 Ohio St. 426, 181 N.E. 870, Judge Stephenson states that "the naked finding of the commission to the effect that it has or has not jurisdiction of a particular claim is not conclusive when the application of the claimant is denied, as the court in an action in mandamus must consider the same facts that the commission considered in determining the question of jurisdiction"; and then in paragraph three of the syllabus itself the court holds that the facts contained in the commission's record may be considered for the purpose of even contradicting an erroneous or incorrect statement in an order of the commission. If they can be used to contradict an erroneous or incorrect statement in an order, a fortiori they can be employed to supplement an ambiguous or deficient one to ascertain the matters actually before the commission. But the relator relies upon the cases of State, ex rel. Vosnosky, v. Industrial Commission, 125 Ohio St. 197, 180 N.E. 894; Industrial Commission v. Nagy, 113 Ohio St. 215, 148 N.E. 398, and Industrial Commission v. Hogle, 108 Ohio St. 363, 140 N.E. 612, which he insists are in conflict with the above mentioned pronouncements. Significantly Judge Stephenson in his opinion in the Araca case makes no mention of any one of these cases. It is sufficient to observe that the syllabus of the Vosnosky case makes no reference to the question involved in the instant case. It is of course true that the per curiam opinion in the Nagy case contains the statement that "the Industrial Commission speaks by its record," and then cites the Hogle case; but it should be noted that according to the record the Industrial Commission had acted in the claimant's favor. It is likewise true that in the Hogle case the second paragraph of the syllabus states that "the Industrial Commission speaks by its record, and such final action, to be the basis of an appeal, must affirmatively appear upon the record of the proceedings of the commission"; but again it must be observed that "every fact was found by the commission in favor of the claimant" in that case and the alleged final order read simply: "And the claim was closed. (Note. — The word 'closed' indicates that no continuation was had.)" Of course under such circumstances this court could not do else than to hold that this entry indicated no affirmative or final action by the commission; and obviously this court could not examine the records of the commission and then erect therefrom an order when in fact none had been made by the commission itself. In marked contrast the instant case involves an order of the commission affirmatively dismissing the relator's first application for modification; and the only request now made of this court is to examine the commission's records to ascertain the matters that had been presented to the commission for its determination at the time the order was made. In the Hogle case it made no difference what matters were before the commission inasmuch as there was no order whatsoever indicating that affirmative action had been taken. Thus this court is not asked to enunciate a rule at variance with its earlier decisions. On the contrary it would be a most unfortunate departure from the well-settled liberal policy of this court if the Workmen's Compensation Act were to be construed so narrowly as to prevent the claimant from perfecting an appeal from an order without regard to the matters actually presented to the commission for its determination. Of course in the instant case such a narrow construction would be advantageous to the relator with reference to his first application for modification, but he seems not to realize that it would at the same time prevent him from showing the matters actually before the commission when it entered simply a dismissal of his second application for modification upon which he now relies. But of manifestly greater importance is the fact that such a rule ultimately would work untold and unnecessary hardship upon many claimants seeking future relief under the salutary provisions of this act.
Was the leg amputation actually before the commission when it dismissed the relator's first application for modification on May 13, 1932? As already observed, the application simply states generally that he "suffered disability far in excess of that recognized by compensation paid." But it should be noted that the leg was amputated nearly three years before this application was filed. It would therefore seem most improbable that the relator would ignore so serious a loss when bringing his condition to the attention of the commission. But fortunately, reliance need not be placed upon so uncertain a basis as mere probability. On the contrary, the records of the commission disclose that on May 3, 1932, the relator filed an affidavit claiming that as a result of his injury on December 12, 1928, he had his leg amputated just below the knee; and with the affidavit was a letter from counsel calling attention to the amputation. Furthermore, it is not disputed that in another affidavit dated August 27, 1931, the relator presented the claim that his right foot had been amputated. Likewise, under date of July 14, 1930, the relator's attending physician, Dr. E.P. Edwards, prepared a supplemental report in which the amputation is mentioned five times. Under circumstances such as these it is difficult to understand how this court can be expected to indulge in inferences, first, that no claim for the leg amputation was before the commission when the first application for modification was dismissed, and, second, that the commission gave no consideration to such claim. Equal difficulty is encountered in attempting to draw the third desired inference to the effect that the dismissal was upon other than jurisdictional ground. The records disclose no other basis for the commission's action than that the amputation resulted from a systemic tubercular condition unrelated to the claimant's injury on December 12, 1928.
From the foregoing discussion it is readily apparent that counsel for the relator should have prepared to appeal the matter by filing the statutory application for rehearing within thirty days after notice of the dismissal of the first application for modification. Having failed to perform this duty, the right thus lost cannot be revested by resort to a subsequent application for a modification involving the same claim. State, ex rel. Randolph, v. Industrial Commission, 128 Ohio St. 27, 190 N.E. 217; Industrial Commission v. Glenn, 101 Ohio St. 454, 129 N.E. 687.
The relator's prayer for a peremptory writ of mandamus must be denied at his costs.
Writ denied.
STEPHENSON, WILLIAMS, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.