Opinion
No. 23908
Decided May 24, 1933.
Workmen's compensation — Mandamus to compel rehearing after denial of modification application — Answer, tendering issue that denial not on jurisdictional grounds, good against demurrer.
In an action in mandamus, seeking to compel the Industrial Commission to allow a rehearing after denial of an application for modification of award, an answer tendering the issue that such denial was not based on jurisdictional grounds is good as against demurrer.
IN MANDAMUS.
This is an original action in mandamus in this court. The relator seeks a writ commanding the Industrial Commission of Ohio to grant him a rehearing in a claim he has filed before the commission. The petition recites that on January 18, 1929, while employed by the Marion Steam Shovel Company, Henry G. Fortner, the relator, sustained a multiple compound comminuted fracture of the left tibia and fibula, in the upper half; that he was compelled to undergo treatment at a hospital and at his home; that afterwards he filed an application with the Industrial Commission and was paid for total temporary disability to January 11, 1930, and permanent partial disability compensation was allowed him in the sum of $470.
The relator claims that on or about the first of May, 1929, he developed soreness in his eyes; that he became totally blind in his right eye, and the vision of his left eye was greatly impaired; that on April 3, 1931, he filed an application for modification of award, setting forth that as a result of the injury sustained, for which the applicant had received compensation theretofore, he suffered permanent injuries to his eyes; that on December 14, 1931, his application for modification of award was dismissed by the Industrial Commission, upon the recommendation of its medical department; that thereafter, within thirty days, to wit, on October 22, 1931, application for rehearing was filed, and that said application was dismissed on July 12, 1932.
The relator further claims that the action of the Industrial Commission in dismissing his application for rehearing was contrary to law, and he seeks this writ of mandamus to require that he be allowed such rehearing.
The answer of the Industrial Commission sets forth two defenses.
First, after admission of the averments of the petition as to the employment, the injury to the left leg of relator, and the payment of temporary total disability in the sum of $750, and for impairment of earnings in the sum of $470, the answer asserts that relator filed an application for modification of award, claiming compensation for injury to his eyes, which application was dismissed, and that an application for rehearing was also dismissed; and, further, the Industrial Commission pleads a general denial.
As a second defense, the Industrial Commission says that at the time of the injury, on January 18, 1929, the Marion Steam Shovel Company was a self-insurer, having complied with the law in that behalf; that upon the hearing of the claim made by the relator for the injury to his leg the self-insurer, the Marion Steam Shovel Company, paid the award and took the following receipt: "It is agreed between the employee and employer that the payment of $470.00 will cover in full the disability resulting from the claimant's injury of Jan. 18, 1929."
Said agreement was signed by the employer and by the claimant, relator herein.
The defendant further says that on April 3, 1931, more than two years after the injury, relator filed an application for modification of award, that no evidence was filed therewith showing that an application had been made to the employer within two years after the alleged injury; that thereafter the Industrial Commission dismissed this application for modification of award; and that thereafter an application for rehearing was filed and dismissed, as was an application for reconsideration.
To this answer the relator has filed a general demurrer.
Messrs. Wilhelm Robinson, Messrs. Hamilton Kramer, and Mr. Arthur W. Wiles, for relator.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
The record shows that more than two years elapsed after the date of the accident to Fortner before he communicated to the Industrial Commission or to his employer the fact that he claimed an eye condition as a result of the accident.
At the outset, relator is met by Section 1465-72a, General Code, which reads as follows: "In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the industrial commission of Ohio or to the employer in the event such employer has elected to pay compensation direct."
In this case the employer had elected to pay compensation direct and had been given a receipt for all injuries due to the accident of January 18, 1929. Unless the eye injury is attributable to the injury of January 18, 1929, relator is barred by the statute.
The answer, to which the demurrer has been filed, does not affirmatively show that the commission based its action in denying relator's claim for modification of award upon the ground that there was no direct connection between the injury to relator's leg, for which compensation had been awarded, and the injuries to his eyes, for which he now seeks compensation. True, the petition avers that the "application for modification of award was dismissed by the Industrial Commission upon the recommendation of the Medical Department of the Industrial Commission," but the general denial of the answer puts such averment in issue. For aught that appears in the pleadings, such recommendation might have justified the commission's action in the premises, and still not afford a basis for denial upon jurisdictional grounds.
The answer is good as against the general demurrer.
Demurrer overruled.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.