Opinion
No. 26482
Decided January 5, 1938.
Workmen's compensation — Agreement by employee to waive rights to compensation, invalid, when — Section 1465-94, General Code.
Under the provisions of Section 1465-94, General Code, an agreement by an employee to waive his rights to compensation under that act is invalid except in the case of an employee who is blind. ( State, ex rel. Fortner, v. Industrial Commission, 127 Ohio St. 289, and Industrial Commission v. Broskey, 128 Ohio St. 372, distinguished.)
IN MANDAMUS.
This is an original action in which the relator asks this court to issue a writ of mandamus commanding the respondent to grant him a rehearing in conformity with the provisions of Section 1465-90, General Code. He claims that on August 30, 1932, he suffered an injury while in the course of his employment at the plant of The Cleveland Builders Supply Company, a self-insurer, but that the respondent has disallowed his claim therefor and has refused to grant him a rehearing.
To the relator's petition the respondent has filed an amended answer alleging four defenses, to the third and fourth of which the relator has filed a demurrer on the ground that the facts stated therein are insufficient to constitute a defense. These latter alleged defenses read as follows:
"Third Defense"For its third defense, this answering defendant repeats and re-alleges all the denials and allegations hereinbefore made as if again set forth at length and says that, on October 24, 1934, the employer and the relator herein entered into a written agreement, a copy of which is attached hereto and marked 'Exhibit A,' under the terms of which the relator waived, released and relinquished any and all rights to have reviewed, either on error, rehearing or appeal, or otherwise, any and all of the orders or decisions of the Industrial Commission of Ohio rendered as to his claim for compensation whether as for occupational disease or for accidental injury for which he filed application on or about January 5, 1933, and February 14, 1933, respectively, both growing out of his claim to have been disabled by inhaling gas.
"Defendant says that the consideration for such agreement was twofold, to wit: 1. The payment of five 00/100 dollars ($5.00) received by relator and 2. Other valuable considerations; that the said valuable considerations other than and in addition to the payment of money aforesaid lay in this, that the employer maintained in force a group insurance contract with the Equitable Life Assurance Society, under the terms of which each of certain employees, including relator, would be paid by the society certain sums of money, provided that proof be furnished the society that any employee so insured has become wholly disabled by bodily injuries or disease and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupation, that the employer, at the request of relator and relator's then attorney, Mr. Leopold Kushlan, did search out and locate proof of permanent total disability within the meaning of that policy of insurance, sufficient to satisfy said assurance society, did assemble said proof and present the same to the society together with its recommendation and persuasion that the society recognize the claim, all at the expense and effort of the employer, all without obligation on the employer's part to do so, and to the detriment of the employer, in addition to the said effort and expense, that the employer did sustain and pay a premium for said group policy substantially greater than such premium would have been in the absence of such proof, as a result of which relator was paid the sum of two thousand 00/100 dollars ($2,000.00).
"Defendant says that, by the express terms of the contract aforesaid, relator has waived, released and relinquished whatever right he may have had, if any, to invoke the jurisdiction of this defendant, Industrial Commission, after October 24, 1934.
" Fourth Defense"For its fourth defense, defendant repeats and re-alleges all denials and allegations hereinbefore made as if again set forth at length and says, further, that said contract between employer and claimant mentioned in third defense hereof, copy attached hereto marked 'Exhibit A,' includes terms by which in addition to waiving whatever right, if any, that he may have had after October 24, 1934, to invoke the further jurisdiction of this defendant, the relator also has waived, released and relinquished any and all right to commence, bring or maintain any action or proceeding or application in any court or elsewhere to induce, require, compel or otherwise to influence or impel the Industrial Commission or any court or other tribunal to grant any further hearing or rehearing of either of his claims, and has further agreed not to institute, commence, perfect or maintain any such action, nor to attempt to do so, and has, by that contract, covenanted and agreed to refrain from bringing or maintaining the instant action and from invoking the jurisdiction of this honorable court in the matter."
These defenses set forth the substance of the instrument referred to as Exhibit A which reads as follows:
" Agreement and ReleaseKnow all men by these presents that I, Anton Rojc, of Cleveland, Ohio, in consideration of the payment of five 00/100 dollars ($5.00) and other valuable considerations, received to my full satisfaction of The Cleveland Builders Supply Company, do hereby waive, release and relinquish:
"1. Any and all rights which I may have to have reviewed either on error, rehearing or appeal, or otherwise, any and/or all of the orders or decisions of the Industrial Commission of Ohio rendered as to my claim for compensation whether as for occupational disease, (for which I filed application for adjustment on or about January 5, 1933, and to which application Claim No. O. D. 1401-22 was assigned by the Industrial Commission) or for accidental injury, (for which I filed application for adjustment on or about February 14, 1933, and to which no new claim number other than O. D. 1401-22 was assigned) both growing out of my claim to have been disabled by inhalation of gases during the summer of 1932 in the employ of The Cleveland Builders Supply Company, and
"2. Any and all rights which I may have to commence, bring or maintain any action, proceeding or application in any court or elsewhere to induce, require, compel or otherwise to influence or impel the Industrial Commission or any court or other tribunal to grant any further hearing or rehearing of either claim aforesaid.
"And I hereby agree not to institute, commence, perfect, maintain, or to attempt the institution, commencement, perfection or maintenance of any proceeding my right to which I have hereinabove waived, released or relinquished.
"In witness whereof I have signed these presents this 24th day of October, 1934.
"Anton Rojc, Claimant.
"I, Leopold Kushlan, certify that I am attorney for Anton Rojc, that I understand and speak the language of said Anton Rojc, and that I have interpreted and explained the foregoing agreement to him at the time he signed the same, which he did in my presence.
"Leopold Kushlan."
Mr. Franklyn E. Stearns, for relator.
Mr. Herbert S. Duffy, attorney general, Mr. John P. Patterson and Mr. Eugene Carlin, for respondent.
At this time it is unnecessary to consider the involved history of the relator's claim. The one question now requiring the attention of this court is the effect of the instrument referred to as Exhibit A which is attacked by the relator's demurrer to the respondent's third and fourth defenses.
The relator relies upon Section 1465-94, General Code, which contains the following language:
"No agreement by an employee to waive his rights to compensation under this act shall be valid, except that an employee who is blind may waive the compensation that may become due him for injury or disability in cases where such injury or disability may be directly caused by or due to his blindness. The Industrial Commission of Ohio may adopt and enforce rules governing the employment of such persons and the inspection of their places of employment. No agreement by an employee to pay any portion of the premium paid by his employer into the State Insurance Fund shall be valid, and any employer who deducts any portion of such premium from the wages or salary of any employee entitled to the benefits of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one hundred dollars for each such offense."
The relator contends that Exhibit A is an agreement to waive his rights to compensation, and is therefore invalid under the prohibition of the foregoing statute.
With reference to this contention the respondent insists that the question of the statutory validity of Exhibit A is not reached because "the allegations of the answer aver facts from which it must be inferred that the right to proceed remaining to plaintiff at the time he made his agreement, if any such right at all then remained, was so nebulous, so doubtful even of its very existence, that the claimant, in good faith and in reliance upon the advice of his attorney, could make a valid contract to sell that microscopic right of doubtful existence." However, it is sufficient to observe that the relator's demurrer is directed only to the third and fourth defenses, and not to the first or second. Consequently neither the first nor the second defense is before the court for consideration at this time, and no opinion is expressed with reference thereto.
The respondent does not contend that the right to pursue statutory remedies is not included within the term "rights to compensation" as employed in Section 1465-94, General Code. In its brief the respondent concedes that "a waiver by one, not otherwise barred, of all his rights to invoke any and all of the proceedings provided by the compensation act might be invalid." However, the respondent cites the cases of State, ex rel. Fortner, v. Industrial Commission, 127 Ohio St. 289, 188 N.E. 8, and Industrial Commission v. Broskey, 128 Ohio St. 372, 191 N.E. 456, and says "we know that this court will consider valid some waivers entered under some circumstances, of some rights under the Act." With respect to these cases it is sufficient to note that in neither was the instant question involved. In the Fortner case the employer and employee agreed upon the amount to be paid, and the Industrial Commission duly approved the settlement by awarding that amount as compensation. In the Broskey case the employee received his money in two different amounts; the first was in the form of an award by the Industrial Commission, and the other was the result of a settlement approved by the Court of Common Pleas in an action pending therein.
In the case at bar the court is of the opinion that the purported waiver is violative of Section 1465-94, General Code, and therefore invalid. The demurrer to the third and fourth defenses of the respondent's amended answer is sustained.
Demurrer sustained.
MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.