Opinion
No. 27627
Decided November 15, 1939.
Workmen's compensation — Computation of death award from date of injury — Section 1465-82, General Code — Mandamus denied to compel rehearing and payment of additional compensation.
IN MANDAMUS.
The petition filed in this court alleges that on January 23, 1930, August 27, 1930, September 16, 1930, and May 6, 1931, Patrick J. Mullen was employed by The Glascote Company of Euclid, Ohio, as a sandblaster, that on the aforementioned dates his mask broke or became torn or defective, exposing him to an abnormal amount of filthy air containing numerous foreign substances, and that those accidental exposures so injured his lung tissues as to proximately cause his death on April 11, 1935.
Upon appeal, after denial of compensation, the Court of Common Pleas of Cuyahoga county found his widow, Cara Mullen, was entitled to participate in the workmen's compensation fund and the Industrial Commission awarded compensation from April 11, 1935, the date of her husband's death, to January 23, 1938, which was the expiration of the eight-year period, under Section 1465-82, General Code, from the date of the first "accidental injury."
Application for modification of award having been denied, the prayer in mandamus is to compel the commission to grant a rehearing and award the maximum allowance of $6500 under Section 1465-82, General Code, or in the alternative to grant a rehearing and compensation from April 11, 1935, to May 6, 1939.
The Industrial Commission has filed a demurrer to the petition.
Mr. Alexander Mintz, for relatrix.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
It is contended in the brief for the relatrix that the Industrial Commission should have taken the date of the last accident (May 6, 1931) as it was the more probable cause of the injury resulting in "the disease and death" and that she is entitled to receive the most favorable possible interpretation of the question as a matter of law.
Mandamus will lie to compel the exercise of discretion but not to control it unless there be an abuse of discretion. State, ex rel. Baker, v. Hanefeld, Dir., 134 Ohio St. 540, 18 N.E.2d 404.
Although it is alleged that the Industrial Commission exercised its discretion in an arbitrary fashion, there are no allegations in the petition sufficient to support the conclusion that the commission abused its discretion in adopting the date of the first "accident" in computing compensation.
The demurrer will be sustained and leave will be given relatrix to plead further.
Reporter's Note — Writ denied. State, ex rel. Mullen, v. Industrial Commission, 187 Ohio St. 17.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.