Opinion
No. 27404
Decided March 22, 1939.
Workmen's compensation — Rehearing upon discontinuance of compensation — Section 1465-90, General Code (117 Ohio Laws, 86), not retroactive — Mandamus denied to compel rehearing.
1. Section 1465-90, General Code, as amended in 1937 (117 Ohio Laws, 86), authorizing a rehearing upon discontinuance of compensation, does not have a retroactive operation.
2. A workman whose claim for compensation on account of an accidental injury was filed and allowed when Section 1465-90, General Code, in its previous form was effective, is not entitled to a writ of mandamus requiring the Industrial Commission to grant a rehearing upon its order denying him further compensation.
IN MANDAMUS.
Filed in this court by Mike Longano, as relator, is a petition in mandamus directed against the Industrial Commission of Ohio, as respondent, in which it is alleged that on October 22, 1927, while employed by a contributor to the State Insurance Fund, the relator sustained an accidental injury in the course of his employment, for which, pursuant to the allowance of his timely application, he was paid compensation continuously until March 17, 1938; that at no time since his injury has the relator engaged in any gainful occupation; that on March 8, 1938, the respondent entered an order finding the relator had received compensation for the period covering his temporary total disability, had also been paid the maximum amount allowed by law for temporary partial disability, and that the disability occasioned to the relator by his injury was not such as to incapacitate him permanently and totally.
It is further alleged that within the prescribed time the relator filed an application for rehearing under Section 1465-90, General Code, as amended in 1937 (117 Ohio Laws, 86), which was denied. The petition concludes with a prayer for the issuance of a writ of mandamus requiring the respondent to grant a rehearing.
A demurrer to the petition has been interposed on the grounds that the court is without jurisdiction over the subject of the suit, and that the petition does not state facts constituting a cause of action.
Mr. C.W. Elliott and Messrs. Davies, Hoover Beall, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The decision in this case turns on whether Section 1465-90, General Code, as amended in 1937, authorizing a rehearing upon discontinuance of compensation, applies, or whether such section in its previous form is controlling.
Counsel for the relator frankly concede that if Section 1465-90, General Code, as in force until July 3, 1937, is applicable, the relator has no standing in court, under the decisions in State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691, and Noggle v. Industrial Commission, 129 Ohio St. 495, 196 N.E. 377, holding that the right of a claimant to continue to draw compensation on account of an injury is a matter exclusively within the determination and jurisdiction of the Industrial Commission.
This court has held that the filing of an application for compensation with the Industrial Commission is a proceeding within the terms of Section 26, General Code, governed thereafter in all respects by the statutes in force when the claim was originally filed. Industrial Commission v. Vail, 110 Ohio St. 304, 143 N.E. 716; State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St. 537, 541, 9 N.E.2d 505, 507; 42 Ohio Jurisprudence, 682, Section 94.
Section 26, General Code, states that no amendment of a statute shall affect a proceeding existing at the time of the amendment, unless otherwise expressly provided in the amending act.
A perusal of Section 1465-90, General Code, as most recently amended, fails to disclose any express language giving it a retroactive operation.
Consequently, the conclusion seems inescapable that the relator must abide by Section 1465-90, General Code, as it existed when he filed his claim for compensation, and, therefore, under the former decisions of this court, he cannot successfully demand a writ of mandamus to compel a rehearing by the Industrial Commission.
We find ourselves in disagreement with counsel for the relator that the cases of State, ex rel. Construction Co., v. Rabbitts, 46 Ohio St. 178, 19 N.E. 437, and State, ex rel. Slaughter, v. Industrial Commission, supra, uphold their contention that Section 1465-90, General Code, as presently in force, is invocable to support the relator's action.
The demurrer to the petition is sustained and, since this ruling clearly determines the controversy, the writ is denied.
Demurrer to petition sustained and writ denied.
WEYGANDT, C.J., DAY, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.