Opinion
No. 23408
Decided April 6, 1932 Reheard and decided June 15, 1932.
Workmen's compensation — Mandamus to compel rehearing — Temporary total disability payments discontinued, and modification application denied — Refusal of right to continue receiving compensation, involves jurisdictional fact, when — Entry dismissing application constitutes final order, when — Section 1465-90, General Code.
1. Where an employe of a contributor to the state insurance fund filed a claim with the Industrial Commission of Ohio for compensation for an injury received in the course of his employment, was allowed and paid on his claim for temporary total disability for a certain length of time and thereafter payment was stopped, and he filed an application for a modification of the award, claiming he had not recovered from his injuries and filed medical proof in support of his claim, and the Industrial Commission found that he was not entitled to further compensation and notified him of such fact, and within ten days he applied to the commission for a rehearing and a rehearing was refused, a writ of mandamus will be allowed to require the Industrial Commission to grant claimant a rehearing.
2. The refusal of the Industrial Commission to grant claimant the right to continue to receive compensation, involves a jurisdictional fact going to the basis of claimant's right and brings the case squarely within the second provision of Section 1465-90, General Code of Ohio.
3. The fact that the Industrial Commission, as a part of its entry of dismissal of claimant's application to continue to receive compensation, states: "The Commission has taken jurisdiction of the claim and has inquired into the extent of disability; has awarded compensation for disability found to exist and stands ready and willing to consider any further disability which claimant may have, when established by substantial proof," does not prevent such entry from being a final order.
IN MANDAMUS.
The facts out of which this controversy arises are as follows: Antonio Araca, relator herein, states in his petition that on September 20, 1930, while at work for the Amata Construction Company, an employer in Cleveland, Ohio, which had complied with the Workmen's Compensation Law, he was struck on the head by a fish plate, causing a skull fracture which he claims resulted in a permanent loss of vision. He filed a claim with the Industrial Commission of Ohio and was paid on said claim for temporary total disability the sum of $546.43, up to April 19, 1931.
On or about May 22, 1931, he filed an application for modification of award, claiming he had not recovered from his injuries; that an atrophy of the optic nerve of the left eye, involving the nerve head, had developed; that he was constantly affected with headaches and dizziness and that the sight in both eyes, particularly the left, had been impaired. He accordingly asked for further compensation, and filed medical proof with the Industrial Commission, showing that as a result of said injury he had sustained a permanent loss of vision in the left eye in excess of twenty-five per cent. Thereupon the Industrial Commission sent him to an eye specialist for examination, and the specialist reported to the commission that Araca had a fifty-seven per cent. loss of vision in the left eye and a forty-four per cent. loss in the right eye, but that such loss of vision had no connection with his injury.
On September 1, 1931, the medical department of the Industrial Commission made the following recommendation:
"Recommendation: No permanent partial compensation is recommended as proof on file indicates that the loss of vision in both eyes has no relation with the original injury. Payment of Dr. Moore's fee in amount of $25.00."
Araca's application for modification of award was heard by the Industrial Commission, and on September 15, 1931, the commission found from the medical proof that he had not sustained a permanent partial loss of vision, and denied him further compensation, but failed to send him notice of its action until October 30, 1931, which notice reads as follows:
"October 29, 1931.
"Mr. Antonio Araca, 12800 Oakfield Avenue, Cleveland, Ohio.
"Dear Sir: At the special hearing of this claim on September 15th, the commission found from medical proof of record that you had not sustained a permanent partial loss of vision.
"Through an oversight in the department you failed to receive a notice of this order immediately after the hearing.
"Yours truly, "[Signed] Wm. H. Mahoney, "Supervisor of Claims."
On November 9, 1931, Araca filed with the Industrial Commission an application for rehearing, and on December 10, 1931, the commission dismissed his application for rehearing and made the following order:
"On the 7th day of December, 1931, the above numbered claim was heard and considered by the commission, at which time the following order was made:
" 'It appears that the injury occurred on or about September 20, 1930. The commission has taken jurisdiction of the claim and has inquired into the extent of the disability; has awarded compensation for disability found to exist and stands ready and willing to consider any further disability which the claimant may have when established by substantial proof.
" 'Therefore, it is the order of the commission that the application for rehearing be dismissed for the said reasons and for the further reason that the ground set forth in the Application for Rehearing is a communication addressed to the claimant.' "
Araca claimed that the action of the Industrial Commission in dismissing his application for rehearing, and in refusing to grant him a rehearing, was contrary to law, and he filed a petition in this court asking that a writ of mandamus issue from this court commanding the Industrial Commission of Ohio to grant him a rehearing.
A demurrer to this petition was interposed by the Industrial Commission, which demurrer was overruled by this court. Thereupon the Industrial Commission filed its answer, in the following words and figures, to wit:
"Now comes the defendant, The Industrial Commission of Ohio, and admits, in answer to the amended petition in mandamus herein filed, that on September 20th, 1930, this relator while in the course of his employment with the Amata Construction Company in Cleveland, Ohio, was struck on the head by a steel fish plate and as a result thereof sustained a fracture of the skull; that thereafter he filed an application with this defendant for compensation from the state insurance fund; that this defendant found all the jurisdictional facts in his favor and found that it had authority to inquire into the extent of disability and amount of compensation and paid him compensation up to April 10th, 1931, in the sum of $546.43; that on or about May 22nd, 1931, this relator filed an application for modification of award for the following reason:
" 'That he has not recovered from his injuries; that there has developed an atrophy of the optic nerve of the left eye involving the nerve head; that he is constantly affected with headaches and dizziness and that the sight of both eyes, particularly the left, has been impaired'; that on November 9th, 1931, this relator filed an application for rehearing.
"The defendant denies each and every allegation in said amended petition contained which is not herein specifically admitted to be true.
"Second Defense.
"As a second defense to the amended petition of relator herein filed, the defendant refers to and incorporates herein all the words and figures of its first defense, making the same a part hereof as though fully rewritten herein.
"Defendant further says that after this relator filed his application for modification of award on May 22nd, 1931, he filed with this defendant the statement of Dr. Joseph H. Ball, which reads as follows:
" 'This man has been under my observation from Dec. 1930 to the present date. (May 27, 1931.)
" 'At the time of my first examination he presented a history of fracture of the skull, X-ray report showing a linear fracture of the left parital bone, extending into the temporal bone in the middle fassa and involving the base.
" 'He complained of headache, dizziness, and loss of vision.
" 'Examination of the right eye showed it to be normal in all reactions, fundus normal in appearance. Examination of the left eye showed it normal in reaction to light and accommodation. Examination of fundus showed an atrophy of the optic nerve, involving a large part of the nerve head. Examination since December, 1930, show the atrophy to be progressive and at present involves nearly three-fourths of the nerve head.
" 'An exact determination of the visual acuity has been difficult owing to the fact that he could not read either letters or figures.
" 'There is a reduction of visual field in both eyes. Visual field in left eye is limited practically to central vision.
" 'Diagnosis — Optic Atrophy — left eye — of traumatic origin.
" 'Prognosis — probable total loss of vision in left eye, eventually.'
"Thereafter, this defendant requested an examination by an eye specialist and referred the relator to Dr. Paul G. Moore of Cleveland; on August 13, 1931, reported his examination as follows: —
" 'History * * * While working in a hole was struck on the head by a steel plate. States he had a fractured skull and complains of headaches and loss of vision more marked in the left eye.
" 'Vision without glasses — Distant, right eye, 64%; left eye, 48.9% Near, right eye 25%; left eye 16.7% * * *
" 'Vision with lens — fitted — Distant, right eye 76.5%; left eye 76.5% Near, right eye 45%; left eye, 25%
" 'External examination of —
Right eye — The lids and conjunctiva are normal and uninjured. The pupil is round, equal to that of the left eye and reacts to light directly and consensually. The cornea is clear and free from scars.
Left eye — The lids and conjunctiva are normal and uninjured. The pupil is round, equal to that of the right eye and reacts to light directly and consensually. The cornea is clear and free from scars.
" 'Tension of each eye —
Right eye — Tension is normal to palpitation. Left eye — Tension is normal to palpitation.
" 'Fundus examination —
Right eye — The pupil was widely and evenly dilated with homatropin. The lens and vitreous are clear. The optic nerve head and fundus are normal. The macula is normal. The blood vessels are small and tortuous, also are sclerosed.
Left eye — The pupil was widely and evenly dilated with homatropin. The lens and media are clear. The optic nerve head and fundus are normal. The macula is normal. There is no evidence of atrophy. The blood vessels are tortuous and sclerosed.
" 'Teeth — Teeth are in poor condition — pyorrhea.
" 'Throat — Throat apparently normal.
" 'Nose — Nose normal.
* * *" 'Field of vision to be traced on charts.
Right eye — plotted — poor cooperation.
Left eye — plotted — poor cooperation.
" 'Is the muscle function normal? Yes.
" 'Recapitulation —" 'As a result of the accident of Sept. 20, 1930, the above claimant has a linear scar in the scalp three inches long over the left parital region about two inches above and anterior to the occipital prominence.
" 'There is no evidence of any injury to the external structures of either eye. There is no evidence of injury to the internal structures of the right eye. The optic nerve is normal in appearance. There is no evidence of any atrophy.
" 'Examination of the left eye shows no evidence of any injury to the internal structures. The physiological cup is a little larger in the left optic nerve head than it is in the right. There is no evidence of any atrophy of the left optic nerve.
" 'The arteries show evidences of sclerosis in both eyes. This man has a moderate amount of astigmatism in both eyes and I believe on this account his acuity of vision has not developed to the extent found in normal eyes. The acuity for near vision was difficult to estimate as this claimant is unable to read either letters or figures and test (small) objects were depended upon.
" 'I do not believe I had the entire cooperation of this claimant in the estimation of his visual fields.
" 'There is no evidence of any injury to the external or internal structures of either eye as the result of the accident of Sept. 20, 1930.
" 'Percentage of vision present in each eye: — right eye — 55.50%; left eye — 42.16%.
" 'Is claimant able to resume work at the present time? Yes as a laborer.
" 'Time consumed in making examination. Two hours.'
"Defendant further says that the above quoted evidence is all of the evidence before it upon the question; thereupon, on September 15, 1931, the following action was taken by this defendant:
" 'That the Commission finds from medical proof of record that claimant has not sustained a permanent partial loss of vision in this case.'
"Thereafter, and in due time, the relator filed his application for rehearing, and on December 7, 1931, this defendant took the following action:
" 'It appears that the injury occurred on or about September 20, 1930. The Commission has taken jurisdiction of the claim and has inquired into the extent of the disability; has awarded compensation for disability found to exist and stands ready and willing to consider any further disability which the claimant may have when established by substantial proof.
" 'Therefore, it is the order of the Commission that the application for rehearing be dismissed for the said reasons and for the further reason that the ground set forth in the application for rehearing is a communication addressed to the claimant.'
"This defendant further says that it has never divested itself or attempted to divest itself of jurisdiction of this claim; that the same is still pending before it for any evidence which this relator wishes to file; that by reason thereof, he can produce before this defendant his evidence at this time; that it is not necessary for him to have a rehearing in order that his evidence may be presented; that his rights are not prejudiced for the reasons hereinabove stated, that is, this defendant has never found that it has no jurisdiction of the claim or right to consider the evidence or inquire into the amount of compensation or extent of disability resulting from the aforesaid injury of September 20th, 1930."
To this answer, Araca has filed a general demurrer and this matter is now before the court on demurrer of claimant to the answer of the Industrial Commission.
Messrs. Cowan, Adams Adams, for relator.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for respondent.
While the section of the General Code involved in this case may be abstruse to some extent, the issue is unquestionably clean cut. Whether or not Araca, the relator herein, is entitled, as a matter of law, to a rehearing before the Industrial Commission, is the sole question for determination.
There is no issue of fact in the case. The question of law arises by reason of the susceptibility to different interpretations of certain parts of Section 1465-90, General Code of Ohio, defining the jurisdiction and duties of the Industrial Commission of the state of Ohio.
So much of Section 1465-90, General Code, as applies to this case, reads as follows: "The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon, including the extent of disability and amount of compensation to be paid in each claim, shall be final. In all claims for compensation on account of injury, or death resulting therefrom, if the commission finds that it has no jurisdiction of the claim and has no authority thereby to inquire into the extent of disability or the amount of compensation, and denies the right of the claimant to receive compensation or to continue to receive compensation for such reason, then the claimant may within thirty days after receipt of notice of such finding of the commission, file an application with the commission for a rehearing of his claim, whereupon the former action of the commission thereon shall be vacated and the commission shall fix a date for rehearing of such claim and give the claimant and his employer at least one week's prior notice thereof. * * *
"If the commission, after such hearing, finds that it has no jurisdiction of the claim and no authority to inquire into the extent of disability or amount of compensation claimed, then the claimant, within sixty days after receipt of notice of such action of the commission, may file a petition in the common pleas court of the county wherein the injury was inflicted, or in the common pleas court of the county wherein the contract of employment was made in cases where the injury occurs outside the state of Ohio."
The section further secures to claimant a trial by jury, if he desires it, and provides for the procedure whereby claimant may have his claim adjudicated.
Section 1465-61 of the General Code particularly specifies the employes who will be permitted to participate in the state insurance fund.
Section 1465-68, General Code, provides that Every employe mentioned in Section 1465-61, who is injured, and the dependents of such as are killed in the course of employment" shall be compensated in the manner and to the extent provided in such section and kindred sections.
A proper interpretation of these sections of the General Code, cited and quoted, is dispositive of the question now before us.
If an employe coming within the statutory description is injured in the course of his employment, he will be compensated. If he is killed in the course of his employment, his dependents will be compensated. Upon denial, in order to procure such compensation, Section 1465-90, General Code, must be followed.
Araca was allowed compensation on his original application and was paid to a certain time, then his compensation was cut off and he filed an application to continue to participate, and the commission refused him further participation.
When a jurisdictional question going to the basis of claimant's right is raised, claimant is entitled to his due process of law. He has a right to have his cause reviewed by the courts. Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, approved and followed.
We are in perfect harmony with the law announced by Chief Justice Marshall in the case of State, ex rel. Butram, v. Industrial Commission, 124 Ohio St. 589, 180 N.E. 61. We quote the second paragraph of the syllabus:
"By virtue of Section 1465-90, General Code, the industrial commission must in the first instance determine whether it has jurisdiction of a claim, and if this question is resolved in the affirmative its further action is a process of fact finding and its judgment is final. In the exercise of that jurisdiction its function is to determine the extent of the disability and the amount of compensation. There is no appeal from that determination and therefore mandamus does not lie to compel the commission to grant a rehearing."
This case settles all questions as to the interpretation of the first sentence of Section 1465-90, General Code. The commission finds it has jurisdiction and acts in the affirmative, that is to say, finds there is disability, determines its extent, makes its award, and its action is final; but, if it finds it has no jurisdiction, such finding must be predicated upon a fact or a series of facts, and, if such fact or facts constitute the basis of claimant's right, then the commission must do all things necessary to give claimant his day in court.
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 juristion.
Summarizing the facts in this case, we find on September 20, 1930, relator, while in the employ of a contributor to the state insurance fund, suffered a fractured skull; that the commission paid him compensation for temporary total disability to April 19, 1931; that on May 22, 1931, he filed an application for a modification of the award, claiming he had not recovered from his injuries, and filed his medical proof. The commission, on September 15, 1931, found claimant was not entitled to further compensation, and on October 29, 1931, notified him of such finding. On November 9, 1931, relator filed with the commission an application for a rehearing, and on December 10, 1931, it made the following order:
"It appears that the injury occurred on or about Sept. 20, 1930. The Commission has taken jurisdiction of the claim and has inquired into the extent of the disability; has awarded compensation for disability found to exist and stands ready and willing to consider any further disability which the claimant may have when established by substantial proof.
"Therefore, it is the order of the Commission that the application for rehearing be dismissed for the said reasons and for the further reason that the ground set forth in the Application for Rehearing is a communication addressed to the claimant."
It will be seen that the commission objected to the form in which claimant made his application for rehearing; but as counsel has not seen fit to advert to this question, and we regard it as inconsequential, we are not considering it.
Under the facts, this was a final order of the commission denying to the claimant the right to continue to receive compensation because of the failure of his proof to establish his right to further participate. Surely this brings the case under the wing of the second provision of Section 1465-90 of the General Code. It involves a jurisdictional fact going to the basis of claimant's right, and he is thereby entitled to a rehearing.
The mere fact, as pleaded by the commission, in substance, that it is holding his claim open and is ready and willing to consider any further disability which the claimant may have, when established by substantial proof, adds nothing. The demurrer to the answer is sustained.
Writ allowed.
MARSHALL, C.J., DAY, ALLEN and KINKADE, JJ., concur.
MATTHIAS, J., not participating.