Opinion
No. 25416
Decided October 23, 1935.
Workmen's compensation — Claim for increased award upon ground method of computation erroneous — Mandamus to compel reconsideration of claim — Writ denied where unreasonable delay in instituting action.
IN MANDAMUS.
The pertinent averments of the petition of the relatrix in this action in which she seeks a writ of mandamus are as follows:
The relatrix was the wife of William Amburns, who died on June 19, 1922, as the result of an accidental injury sustained while in the course of his employment with the Wellston Iron Furnace Company, which company had complied with the Workmen's Compensation Law of the state. Thereafter, pursuant to the application of relatrix on behalf of herself and minor children, the commission, having made and entered a finding that the average weekly wage of William Amburns was $15, made an award of compensation at the rate of $10 per week, $4,060 in the aggregate, the payment of the last installment of which was made in June, 1930. The employer of Amburns, prior to that finding and award, had filed wage statements with the Industrial Commission covering a period of one year prior to his injury, which wage statements showed the earnings of Amburns to be an average of $15 per week for the period of one year; the wage statements originally filed with the commission did not show the earnings of Amburns during periods of two weeks, but showed same for periods of one month; and thereafter, to wit on March 12, 1935, the employer filed wage statements showing the wages of Amburns by periods of two weeks, which wage statements further showed that from the period of June 1, 1922, to June 19, 1922, the date of the injury and death of Amburns, his average weekly wage was $19.19; and further for the period from May 15, 1922, to June 19, 1922, his average weekly wage was $17.75. On January 16, 1935, the relatrix filed an application for modification of award, which called the defendant's attention to the fact that the average weekly wage of Amburns at the time of his injury and death was greater than $15 and requested a further award, which application was dismissed March 6, 1935, as was an application for reconsideration which was later filed. The relatrix seeks a writ of mandamus to compel the defendant to fix and pay the relatrix additional compensation based upon an average weekly wage of $19.19.
The answer admits all the averments of the petition relative to the death of the employee in the course of his employment and the allowance and payment of compensation as set out in the petition. It is then averred that the commission inquired into the question of the amount of compensation to which the claimant was entitled and made an award of compensation at the rate of $10 per week for a period of 416 weeks, commencing June 26, 1922, of which claimant was duly notified, the last installment of compensation having been paid June 26, 1930; that no exception was taken to any action of the commission until January 16, 1935, more than twelve years after the award was made and more than four and one-half years after it had been completely paid; that after the award was made the commission set up the proper reserve against the State Insurance Fund to pay the award during the period stated and charged the same against the industry and employers engaged in that classification at the time of the occurrence of the injury; that at all times thereafter premiums have been established and collected upon such basis; and that the allowance of the additional claim now sought would materially affect the State Insurance Fund in that any additional award necessarily would be added to the premiums of employers engaged in such business at this time, regardless of whether they were so engaged in 1922, and employers then engaged in such business would be relieved from paying their proper share into such fund. Upon these facts the defendant bases its defenses of laches and prays the dismissal of the petition of relatrix.
Issue has been made and presented by a demurrer to this answer.
Mr. Harry B. Reese, for relatrix.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for defendant.
The relatrix apparently bases her claim for an increased award upon the ground that the method of computation of her award when granted by the commission in 1922 was erroneous, or that the method of ascertainment of the average weekly wage was incorrect, and seeks to have her claim reconsidered and a rule of ascertainment of weekly wage applied which would result in a higher award than was made by the Industrial Commission.
The assertion of this claim and the insistence at this late day upon a writ of mandamus to compel a review by the Industrial Commission of its action in 1922 concededly is prompted by the decision of this court in the case of State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St. 573, 192 N.E. 873, where the court sustained the Industrial Commission in disregarding its previously adopted rule using "the full weekly wage * * * at time of injury" as the basis of computation of award to an injured employee instead of "the average weekly wage of the injured person at the time of the injury" as required by statute, but held that the statute did not contemplate that a six months' period be considered in the ascertainment of "the average weekly wage * * * at the time of the injury." An adjustment of the compensation award in accordance with such construction of the statute was accordingly directed.
More than twelve and a half years have elapsed since the right of action accrued to the relatrix which is now sought to be asserted, for her right to contest the award arose in 1922. The award was made and the amount thereof fixed and determined upon the facts then before the commission under the law as long interpreted and applied by it. If contended that it continued available by reason of the continuing jurisdiction of the Industrial Commission, it must be observed that more than four and a half years have elapsed since the award was fully paid and the case was closed. In the meantime premiums based upon awards made were assessed upon then existing industries in accordance with statute. The award of additional sums after a long lapse of time would result in the imposition of the burden thereof upon industries in existence now instead of those at the time contemplated by statute. The issuance of the extraordinary writ of mandamus rests in the sound discretion of the court. The application therefor must be timely and the right of the relatrix to the relief must be clear. Where an unreasonable time has elapsed, and particularly when the allowance after such delay would be prejudicial to the right of the defendant, it will be refused. 25 Ohio Jurisprudence, 1177, Section 239; State, ex rel. Smith, v. Witter, Dir. of Dept. of Industrial Relations, 114 Ohio St. 357, 151 N.E. 192. The demurrer to the second defense of the answer is therefore overruled. It having been conceded that disposition of this demurrer is decisive of the case, the writ is denied and the petition is dismissed.
Writ denied.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., not participating.