Opinion
No. 34432
Decided December 21, 1955.
Workmen's compensation — Medical and hospital expenses — Right to payment therefor, substantive — Measured by statute effective at time of injury — Statute prospective in effect — Section 1465-89, General Code — Amendment not to affect pending actions — Section 26, General Code — Refusing to allow additional benefits not abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
On March 12, 1949, relator received an injury in the course of and arising out of his employment with one of the respondents herein, a self-insurer. On June 22, 1949, an application for workmen's compensation was filed with the Industrial Commission. Relator was found to be disabled as a result of such injury and is receiving workmen's compensation for such disability. Medical bills resulting from the injury were paid by the employer. On May 19, 1951, a motion for additional medical and hospital expenses was filed with the commission. Two members of the commission voted in favor of the motion and one against it. The commission refused to order payment for additional medical and hospital expenses on the ground that on the date of the injury and on the date of the filing of the first application for compensation Section 1465-89, General Code, required the "unanimous approval" of the commission for the payment of such additional expenses in excess of $200. That section was amended, effective September 1, 1949, and thereby the requirement of "unanimous approval" was eliminated and authority was conferred upon the commission to order the payment of such additional expenses by a majority of its members. The additional expenses in question were incurred subsequent to the effective date of such amendment.
Upon refusal by the commission to order payment of such additional expenses, relator instituted this action in mandamus in the Court of Appeals, seeking a writ requiring the commission to order such payment and the employer to pay.
Relator contends that the provisions of Section 1465-89, General Code, relative to the payment of medical expenses and the requirement that the commission unanimously approve payment of an amount over $200 are purely remedial and that the section as amended applies. Relator concedes that, if such provisions are held to be substantive rather than remedial, the statute in force at the time of the injury would be applicable and the amendment would not apply. Relator contends further that the commission abused its discretion in refusing to unanimously order payment of medical and hospital expenses.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Traxler Beil, for appellant.
Mr. C. William O'Neill, attorney general, Mr. Paul Tague, Jr., Messrs. Harrington, Huxley Smith and Mr. C. Kenneth Clark, for appellees.
The right of an injured employee to compensation and medical benefits under the Workmen's Compensation Act is governed strictly by the provisions of that act and may not be changed by the Industrial Commission or even by the General Assembly subsequent to the accrual of the right. The right to payment for medical and hospital expenses is a substantive right, measured by the provisions of the act in force at the time the cause of action accrues, which is the time the injury is received. Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470; State, ex rel. Schmersal, v. Industrial Commission, 142 Ohio St. 477, 52 N.E.2d 863. The cause of action is the right to participate in the State Insurance Fund, or the right to receive benefits payable by a self-insuring employer.
The amendment of Section 1465-89, General Code, by which the requirement of "unanimous approval" by the members of the commission for the payment of additional medical and hospital expenses was eliminated, is prospective in effect; not retroactive, as claimed by relator. State, ex rel. Bessler, v. Industrial Commission, 157 Ohio St. 297, 105 N.E.2d 264.
Since the right is substantive, and the statute in effect when relator's cause of action arose required the unanimous approval of the commission for the payment of such additional expenses, relator is not entitled to the relief sought.
Another reason for denying relator the relief sought is that his action was commenced on June 22, 1949, by the filing of his original application for compensation and was a pending action when the amendment of Section 1465-89, General Code, above referred to, was passed, and the amendment does not expressly provide that it shall apply to pending actions. Section 26, General Code (Section 1.20, Revised Code); State, ex rel. Thompson, v. Industrial Commission, 138 Ohio St. 439, 35 N.E.2d 727.
Relator urges further that, even though the unanimous action of the commission is required to make its order effective, the failure of the commission to act unanimously in favor of the allowance for additional benefits constituted an abuse of discretion. This court does not agree with that contention.
The opinion in the case of State, ex rel. Ramsey, v. Industrial Commission, 140 Ohio St. 246, 248, 42 N.E.2d 981, reads in part as follows:
"Analyzing Section 1465-89, General Code, it authorizes the commission, in its discretion and presumably by a majority vote, to disburse the sum of $200 for the medical expenses incurred by a disabled employee. In unusual cases and when necessary the commission is empowered to expend a larger sum for medical attention, but this can be done only by the unanimous vote of the members of the commission and upon a finding of facts which must be made a part of the minutes.
"It will thus be seen that the disbursement of moneys from the State Insurance Fund for medical expenses lies within the sound discretion of the commission. * * *
"While it is well established that in a mandamus action the proper court may compel the exercise of discretion by a body like the Industrial Commission, it is equally well settled that such discretion may not be controlled or limited by a writ of mandamus unless an abuse is clearly apparent."
This court is of the opinion that, in the instant case, the commission did not abuse its discretion.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.