Opinion
No. 28641
Decided July 9, 1941.
Workmen's compensation — Application for additional compensation — Finding thereon related to extent of disability — Final decision not interfered with by mandamus, when — Subsequent application is step in pending proceeding — Section 26, General Code — Two-year limitation applies — Section 1465-86, General Code.
1. Where the Industrial Commission upon consideration of evidence before it on an application for additional compensation finds that disability subsequent to that for which compensation has been previously awarded has not been proved and dismisses the application, the decision of the commission relates to the extent of the disability and is final; such a final decision will not be interfered with by the courts in an action in mandamus in the absence of an abuse of discretion.
2. The filing of an application for compensation constitutes the commencement of a proceeding and the subsequent filing therein of an application for modification of a former finding and order or for additional compensation is but a step in a proceeding that is pending within the meaning of Section 26, General Code.
3. Section 1465-86, General Code, which provides inter alia that "the commission shall not make any such modification, change, finding or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor which is filed after this act becomes effective," by its express terms applies to a pending proceeding for compensation within the purview of Section 26, General Code.
IN MANDAMUS.
This cause is an original proceeding in mandamus in which Ellis Thompson, the relator, seeks to compel the respondent, the Industrial Commission of Ohio, to proceed to hear his claim for compensation for disability from May 1936 to January 31, 1938, on its merits and to render its decision thereon.
The relator received an injury on December 2, 1935. He was compensated for temporary total disability for 10 and 1/7 weeks in the amount of $190.19 and for temporary partial disability for 3 weeks amounting to $7.87. He returned to his employment on February 24, 1936, and continued therein until about May 11, 1936. On November 10, 1936, he filed an application for additional compensation. On that application the commission made an order on February 10, 1937, of which the material parts read as follows:
"He was earning a normal wage on or about May 11, 1936, when he sought and secured permission to take a three months leave of absence for the purpose of taking his wife away from their home city of Cincinnati to the country because of ill health. The record also indicates, through the medium of an affidavit from the employer, that claimant overstayed his leave of absence, and when the employer received no response to a letter of October 23, 1936, claimant's name was dropped from the pay roll lists.
"During the period of claimant's absence, there were no medical reports submitted, nor have there been, other than the report of the examination made by Dr. Hudson on December 30, 1936. The report by Dr. Hudson indicates while there was some disability Dr. Hudson indicates while there was some disability possible, based on claimant's complaints, the doctor reported that claimant's general physical condition was found essentially negative. In the absence of any medical proofs of disability over the period following claimant's having ceased work, to go on a requested leave of absence because of the illness of his wife, the commission orders that the application for adjustment of claim filed Nov. 10, 1936, be, and such application is, hereby dismissed."
On January 31, 1940, claimant filed a second application for additional compensation for disability from May 1936. The commission granted this application but the award covered only the period from January 31, 1938, to February 24, 1940, and gave as a reason for not making an award for the period prior to January 31, 1938, that claimant was not entitled to compensation for any period prior to two years before the filing of the second application in view of amended Section 1465-86, General Code.
This cause in mandamus is submitted on the pleadings and the record before the Industrial Commission which was admitted in evidence by stipulation of the parties.
Messrs. Stewart Beirne and Messrs. Connolly Connolly, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The sole question is whether the relator is entitled to a peremptory writ of mandamus to compel respondent to proceed with the hearing of relator's claim for compensation for disability from May 1936 to January 31, 1938, on its merits and render a decision thereon.
In determining the question it is necessary to consider the two applications for additional compensation (each of which covered a period of time from May 1936) and the action taken by the commission on each of them.
With respect to the first of these applications, the relator contends it was never heard upon its merits. In the order thereon made February 10, 1937, the commission found that claimant quit his employment on or about May 11, 1936, upon permission to take a three-month leave of absence for reasons personal to himself and family; that the report of Dr. Hudson shows that there was some possibility of disability and that claimant's general physical condition was essentially negative; that there was no proof of disability for the period involved; and that he ceased work on a requested leave of absence. On these findings the application was dismissed.
The denial of the claim for additional compensation was not on the ground the claimant had since May 1936 suffered disability that was not the result of the original injury. Such would be a denial on a jurisdictional ground which would afford a basis for rehearing and ultimately for appeal provided claimant was aggrieved on rehearing. Humphries v. Wheeling Steel Co., 132 Ohio St. 263, 7 N.E.2d 230. The action of the commission, on the contrary, constituted a determination of the extent of the disability arising from the original injury and a disposition of the application on its merits.
Such a determination by the commission is final and the courts will not interfere by mandamus in the absence of an abuse of discretion. Possibility of disability is not sufficient to give a right to compensation. Probability is necessary. An examination of the record discloses that the findings and decision were supported by evidence and that there was no abuse of discretion.
The second application filed January 31, 1940, was granted to the extent that compensation was allowed for the period of two years prior to the filing of such application. The refusal of the application, insofar as it referred to the period prior to January 31, 1938, was based upon the two-year limitation provided for in Section 1465-86, General Code, as amended in 118 Ohio Laws, 415, effective August 28, 1939.
That section after reciting that the commission may make such modification or change with respect to its former findings and orders as in its opinion is deemed justified provides, among other things, that "the commission shall not make any such modification, change, finding or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor which is filed after this act becomes effective."
Claimant contends that the filing of the original application constituted the commencement of a proceeding; that the subsequent filing of each application for additional compensation was only a step in the original proceeding; that there is no express statutory provision making the amended section applicable to pending proceedings; and that therefore by virtue of the general saving statute (Section 26, General Code) the amended section did not govern the commission as to the second application for additional compensation.
There was indeed a pending proceeding, which began with the filing of the original application and the subsequent applications were only steps in the same proceeding. The claimant is wrong, however, in asserting that there is no express provision in Section 1465-86, General Code, as amended, which makes the part thereof under consideration apply to a pending proceeding for compensation. Express language is necessary of course, but a recital in the precise language of Section 26, is not required. State, ex rel. Cleveland Ry. Co., v. Atkinson, Admr. of B. U. C., 138 Ohio St. 157, 34 N.E.2d 233. The amended section by its express terms applies to every modification, change, finding or award made by the commission upon an application which is filed after that section becomes effective. Consequently it applied to claimant's second application for additional compensation.
Claimant makes one other contention. He maintains that the two-year provision even though it applies to the second application for additional compensation does not apply to the first. Therefore, he asserts, he may be awarded compensation for disability between May 1936 and January 31, 1938, on the first of these supplemental applications. As heretofore stated the first of these two applications was disposed of on its merits and the decision was final. The rule is definite as to subsequent action by the commission after such disposition. An application for additional compensation does not revive a former application whether supplemental or original. Were the rule otherwise the commission could always be compelled to go back to the original or a supplemental application previously disposed of and reconsider its former action. As a result the two-year provision of the amended statute would be nullified.
The relator is not entitled to a writ of mandamus and the prayer of the petition is denied.
Writ denied.
WEYGANDT, C.J., TURNER, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.