Summary
In Allied Wheel Products, we said that we would not disturb the amount of a VSSR award as long it was within the fifteen-to-fifty-percent range set forth in Section 35, Article II of the Ohio Constitution.
Summary of this case from State ex Rel. v. Indus. CommOpinion
No. 34835
Decided December 19, 1956.
Workmen's compensation — Additional award for violation of specific requirement — Application for — Time for filing — Amendment after two years from date of injury — Amendment not effecting substantive change — Abuse of discretion not shown — Hearing — Evidence to support claim — Amount of award.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from a judgment of the Court of Appeals for Franklin County denying a writ of mandamus sought by relator, Allied Wheel Products, Inc., to require respondent, the Industrial Commission of Ohio, to set aside and vacate an additional award for violation of a specific safety requirement and to set aside and vacate orders for the collection of such award from the relator.
The facts in the case are not in dispute, and the action was tried in the Court of Appeals upon agreement of the parties that the entire file of respondent is a complete and full transcript of all the evidence and proceedings before respondent and would constitute the record in the cause.
Mary C. Howdieshell Burns, hereinafter referred to as claimant, was injured on September 12, 1950, while in the employ of relator, and received workmen's compensation awards as a result of such injury. About a year later, on September 13, 1951, claimant filed with respondent an application for an additional award for violation of a specific requirement, citing page 15, section 7, chapter 2 of the Specific Requirements and General Safety Standards of the Industrial Commission of Ohio for Workshops and Factories, relating to horizontal belts and pulleys, and section 10 of said chapter, relating to gears and sprockets.
Relator filed an answer to this application, denying any violation and alleging that the bulletin cited had not become effective until after the date of the accident.
Following an investigation of the claim, respondent notified relator that the claim would be heard on December 22, 1952, the notice stating in part: "The question for determination at this hearing is whether the employer in this claim has violated the specific requirement set out in claimant's application for additional award as follows: Section 7, page 15, chapter 2, of Bulletin of Industrial Commission, State of Ohio, Specific Safety Requirement."
At the hearing on December 22, respondent determined that the bulletin relied upon by claimant had not become effective until after the injury and, therefore, could not support her claim for an additional award. Respondent, however, reserved decision and granted leave to file additional memoranda. Claimant, thereupon, by way of letter from her counsel, cited section 7, Specific Requirements, General Safety Standards for Workshop and Factories (bulletin 203), effective January 1, 1924.
Relator objected on the ground that claimant's original application did not comply with rule 1 of the respondent, relating to additional awards, in that said application did not set forth "the section or sections of the law or code of specific requirements applicable," and that an amendment thereto could not be allowed after the two-year period of limitation had expired.
Without further hearing, the respondent, on January 28, 1953, granted claimant an additional award equal to 50 per cent of the maximum weekly rate for violation of section 7, bulletin 203, and certified the same for collection.
Upon the denial of its application for rehearing by respondent, relator, after attempting to secure a writ of mandamus in this court ( State, ex rel. Allied Wheel Products, Inc., v. Industrial Commission, 161 Ohio St. 555, 120 N.E.2d 421), instituted the present action in mandamus.
Messrs. Cobourn, Yager, Notnagel, Smith Beck, for appellant.
Mr. C. William O'Neill, attorney general, Mr. James L. Young and Mr. John R. Barrett, for appellee.
The first error assigned by relator is that the respondent was guilty of an abuse of discretion in permitting an amendment of claimant's application after the expiration of more than two years from the date of injury.
Section 1465-72 a, General Code (Section 4123.84, Revised Code), provides that claims for workmen's compensation shall be forever barred unless application therefor shall be made within two years from the date of injury or death. An award of additional compensation is not a modification of a previous award but is a new, separate and distinct award and is subject to the two-year period of limitation. State, ex rel. Fruehauf Trailer Co., v. Coffinberry et al., Industrial Commission, 154 Ohio St. 241, 95 N.E.2d 381; State, ex rel. Carr, v. Industrial Commission, 130 Ohio St. 185, 198 N.E. 480. After the expiration of the two-year period, a claimant can not for the first time assert as the basis for his claim the violation of a different specific safety requirement which had not theretofore been relied on. State, ex rel. DeBoe, v. Industrial Commission, 161 Ohio St. 67, 117 N.E.2d 925. Nor can a claimant rely upon a specific safety requirement which is directed toward the regulation of some industry other than that in which his employer was engaged at the time of the injury. State, ex rel. Miller Plumbing Co., v. Industrial Commission, 149 Ohio St. 493, 79 N.E.2d 553.
In our opinion, the present case does not fall within the above-cited rules. The original application here was filed within the limited period and charged the violation of a particular specific safety requirement, viz., failure to enclose or guard a set or train of gears.
Save for one difference in the exception clause, which difference has no material significance in this case, page 15, section 7, chapter 2 of bulletin of Industrial Commission, state of Ohio, of specific safety requirements, cited by claimant in her original application, is identical in wording with section 7, Specific Requirements, General Safety Standards for Workshops and Factories.
This latter specific requirement was in effect at the time claimant sustained her injury, and presumably relator had knowledge of it. The requirement has continued to remain in effect in almost identical terms, although it has been republished in a new bulletin and given a new numerical designation.
We are of the opinion that the amendment permitted here in no way effected a substantive change in the original action which was timely instituted, and that permitting the claimant to substitute the applicable numerical designation for the particular safety requirement alleged to have been violated did not constitute an abuse of discretion by respondent.
We believe relator was not denied a hearing on this claim. The order of the respondent clearly shows that, following the December 22 hearing, the claim was "held for decision," with the parties being given the right to present further memoranda. Relator was present at this hearing and corresponded with respondent concerning the matter, between that date and January 28, when an order based on the December 22 hearing was issued. Furthermore, following the allowance of the amended claim, relator filed a motion for rehearing and reconsideration, which motion was heard on November 6, 1953, and relator was present and represented at the hearing.
Relator has also assigned as error the granting of the award unsupported by any evidence of violation of a specific safety requirement. This court has held on many occasions that the determination of disputed factual situations as well as the interpretation of a specific safety requirement is within the final jurisdiction of the Industrial Commission. Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484; State, ex rel. Moore, v. Industrial Commission, 129 Ohio St. 195, 194 N.E. 370; State, ex rel. Berry, v. Industrial Commission, 129 Ohio St. 228, 194 N.E. 414; State, ex rel. Howard Engineering Mfg. Co., v. Industrial Commission, 148 Ohio St. 165, 74 N.E.2d 201; State v. Ohio Stove Co., 154 Ohio St. 27, 93 N.E.2d 291. In our opinion there was evidence upon which the respondent's finding might properly rest, and in this circumstance the determination of respondent became final.
The amount of the award here was within the limits prescribed by Section 35, Article II of the Ohio Constitution, and we can not say that the awarding of the maximum allowable thereunder constituted an abuse of discretion.
We have examined relator's other assigned errors relating to the refusal of the Court of Appeals to grant a new trial and to the refusal to state separately its findings of fact and conclusions of law, with respect to certain issues raised and presented, and we find no error therein prejudicial to relator.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.