STATE, EX REL. v. INDUS. COMM., 130 Ohio St. 192 (1935)

198 N.E. 485

THE STATE, EX REL. KAISER v. INDUSTRIAL COMMISSION OF OHIO.

No. 25310Supreme Court of Ohio.
Decided November 13, 1935.

Workmen’s compensation — Mandamus to compel rehearing and determination of disability compensation — Commission dismissed rehearing application and retained jurisdiction — Sections 1465-86 and 1465-90, General Code — Determination of further disability compensation not reviewable by mandamus.

IN MANDAMUS.

The relator, August J. Kaiser, filed an action in this court wherein he prays that a writ of mandamus issue commanding the Industrial Commission to grant him a rehearing and to exercise its functions of determining the extent of relator’s disability and the amount of compensation to which he should be entitled. The cause was presented to this court upon petition, answer and the evidence which comprised the proceedings before the Industrial Commission. These proceedings are somewhat prolix; however, the salient facts may be briefly stated.

Early in January, 1925, the relator, while employed by a contributing employer to the State Insurance Fund, froze his feet and was paid his medical bill and a salary of $35 for the week that he was disabled as a result thereof. On the 24th day of December, 1929, while in the course of his employment for the same employer, the relator again froze his feet, and as the result thereof was forced to quit work. On June 1, 1931, claimant filed his application for payment of compensation. The commission assumed jurisdiction of the claim and after investigation thereof from time to time made separate awards for disability between September 10, 1931, and August 13, 1933. The total compensation thus awarded amounted to $1741.32, which, with the medical expenses incurred, were paid by the commission.

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The relator contends that his wage impairment fixed by the commission on June 9, 1932, in the sum of $31.88 was too low; and furthermore that the commission abused its discretion in failing to award him, in its final entry, any amount for disability compensation. From time to time the claim was referred to the commission’s medical department for report, which showed divergence of opinion as to the character and extent of claimant’s disability. As a result of the investigations, the commission, on October 6, 1933, made the following order: “Commission finds from medical proof that claimant is able to resume work, and orders no further consideration be given the claim for compensation until the claimant secures employment fitted to his condition and submits wage statements.” On November 10, 1933, claimant filed a so-called application for rehearing. The commission gave notice to the claimant that he would be heard on his right for rehearing on January 8, 1934. On that date, counsel for the claimant appeared before the commission and offered the statements of physicians and of the claimant to the effect that claimant had not been fully compensated but was still suffering from disability caused by his injury and should be entitled to further compensation. At such hearing the following colloquy occurred:

Mr. Nysewander (a member of the commission): “The commission has never found this man to be fully compensated and never has denied compensation on jurisdictional grounds.”

Mr. Boyd (for the plaintiff): “We will produce additional evidence in this matter if the board will grant a rehearing. We will offer evidence substantiating our contention that we are entitled to a rehearing in this case.”

Mr. Nysewander: “The commission objects to all thereto and simply recites the order of the former finding.”

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Thereupon, on January 30, 1934, the commission made the following order, it being the last entered in these proceedings:

“It appearing from the record in this case that the Commission has assumed jurisdiction and paid compensation in considerable amount both for total disability and for partial disability and has never since denied the jurisdiction of the Commission to make further award; and it appearing further that the Commission has never exercised its full jurisdiction to determine the full extent of disability and award compensation therefor; the application for rehearing is ordered dismissed with the understanding that the Commission still retains jurisdiction and will make such further award or awards when and if evidence of a substantial nature warrants such further finding.”

Messrs. Boyd Boyd, for relator.

Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for defendant.

BY THE COURT.

The contention that the commission erroneously fixed claimant’s average weekly wage prior to the injury in the sum of $31.88 may be ignored since such amount was determined by the commission upon evidence adduced in the proceedings. The chief complaint, however, is that the commission failed to make him any disability award until he complied with its order that the claimant should endeavor to secure employment. The record clearly shows that the commission assumed jurisdiction of the claim and heard and determined the question whether he was entitled to disability compensation. Section 1465-90, General Code, reads as follows: “The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon, including the extent of disability and amount of compensation to be paid in each claim, shall be

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final.” This clause has been before this court on numerous occasions since the enactment of the above quoted section and we have held that, where the commission entertains jurisdiction, its further action is a process of fact finding wherein its judgment is final; and furthermore that “mandamus does not lie to compel the commission to grant a rehearing.”State, ex rel. Butram, v. Industrial Commission, 124 Ohio St. 589, 180 N.E. 61. To the same effect are the following cases:State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691; Metal Specialty Co. v. Gregory et al., Industrial Commission, 128 Ohio St. 452, 191 N.E. 701; Noggle
v. Industrial Commission, 129 Ohio St. 495, 196 N.E. 377. The last order made by the commission expressly stated that it had assumed and never denied jurisdiction to make further award and that it had never exercised its full jurisdiction to determine the full extent of claimant’s disability; and it also stated that the application for so-called rehearing was dismissed “with the understanding that the Commission still retains jurisdiction and will make such further award or awards when and if evidence of a substantial nature warrants such further finding.” This order was evidently made in compliance with Section 1465-86, General Code, and is similar to that made i State, ex rel. Grant, v. Industrial Commission, 110 Ohio St. 187, 143 N.E. 535, which held that mandamus did not lie and that the relator was relegated to further hearing before the commission under its continuing jurisdiction as provided for under the last named Code section. While the commission, in its order of October 6, 1933, does not specifically so state, it apparently entertained the opinion that the claimant had been malingering by failing to make any effort to secure employment, and that until he did so it could not fairly determine the claimant’s wage impairment. However, the final order of January 30, 1934, was not conditioned upon the requirement

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that the claimant should endeavor to secure employment. In any event, the commission having assumed jurisdiction, its determination of the fact whether the claimant should receive further disability compensation is a final determination which this court is powerless to review by proceedings in mandamus.

Writ denied.

WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.