Summary
In State ex rel. Boswell v. Industrial Commission, 125 Ohio St. 341, 181 N.E. 476, the statute expressly related to claims filed "heretofore or hereafter."
Summary of this case from Philadelphia Nat. Bank v. RaffOpinion
Nos. 23203, 23319, 23348, 23240 and 23281
Decided June 1, 1932.
Workmen's compensation — Modification or change of findings or orders — Ten-year limitation applicable to past or future claims — Section 26, General Code, inapplicable — Specific constitutional power not modified or restricted — Section 35, Article II, Constitution — Section 1465-86, General Code (114 O. L., 38), constitutional.
1. The provisions of Section 26, General Code, that pending proceedings are not affected by statutory amendments "unless so expressed" have no application in the construction of Section 1465-86, General Code, as amended in 1931 (114 O. L., 38), since that amendment by its own terms applies to "any claim whether filed heretofore or hereafter."
2. Section 35, Article II of the State Constitution, in authorizing the passage of laws establishing a fund for workmen's compensation, directs that it shall be "administered by the state, determining the terms and conditions upon which payment shall be made therefrom;" and the power so granted is not modified or restricted by any other provision of the constitution.
3. The provisions of Section 1465-86, General Code, as amended in 1931 (114 O. L., 38), making the limitation therein specified applicable to claims filed prior as well as subsequent to such amendment, are valid and enforceable.
IN MANDAMUS.
These are original actions in mandamus and present substantially the same question.
In the Boswell case the relator seeks an order of this court requiring the payment of compensation to which he claims he is entitled out of the workmen's compensation fund. This case was presented to the court upon an agreed statement of facts. The conceded facts essential to a consideration of the legal question presented may be concisely stated. Boswell was injured December 9, 1916. His claim for compensation was allowed and was paid to March 30, 1917. Thereafter on or about May 14, 1930, he filed with the Industrial Commissin an "Application for Modification of Award." Proof was presented; physical examination of claimant was made. Investigation was conducted, and subsequently hearing was had January 15, 1931. Further investigation was made by a representative of the commission and report made to the commission August 12, 1931. The claim was further considered upon its merits, and the relator was advised that the same was held for decision. Thereafter on September 23, 1931, the commission found that it had no jurisdiction to take further action on the claim.
The issue in the Calvert case was made by demurrer to the amended petition. The relator avers that on October 24, 1916, while in the course of his employment with a contributor to the workmen's compensation fund, he suffered a fracture of his left arm, and that immediately thereafter he filed a claim with the Industrial Commission and was awarded compensation for temporary disability, which was paid. At the end of a period of three months he returned to work at light employment, and thereafter his arm gradually grew worse, which resulted in a wage impairment in excess of ten dollars per week. He avers that on November 3, 1930, he filed with the Industrial Commission his application for further partial compensation, under Section 1465-80, General Code, that the Industrial Commission proceeded with its investigation, and that on August 4, 1931, the application of the relator came on for hearing before the Industrial Commission and the following order was made: "The commission finds that they are without jurisdiction because of the expiration of a ten year period since the date of payment of last compensation." The relator further avers that upon demand the Industrial Commission has refused to give further consideration to his claim. He prays for a writ commanding the commission to pay him the sum of $708.29.
The issue in the Johnson case was also made by demurrer to the petition, the substance of which is that the relator on April 17, 1931, applied to the Industrial Commission for modification of award for injuries sustained on June 6, 1919, in the course of his employment; that said application was originally filed with the commission on August 21, 1919, and in due course the commission granted an award of total disability for nine and two-thirds weeks; that on April 17, 1931, in pursuance of Section 1465-86, General Code, the relator filed an application for modification of award, seeking an award for permanent partial disability as a result of his injuries of June 6, 1919, said permanent partial disability being a wasting or degeneration of muscles of both left and right feet, and of the hand, and partial blindness of both eyes; that the Industrial Commission set relator's hearing on August 27, 1931, and then made the following finding: "That the application for modification of award be dismissed; that the claimant be advised that under the provisions of Section 1465-86, no further action can be taken in this claim." It is further averred that on September 10, 1931, relator filed an application for rehearing, with reference to which the following entry was made on September 21, 1931: "That the application for re-hearing be dismissed for the reason that there is no provision in law for said application." It is then averred that the commission has refused to grant a hearing on relator's application for modification of award.
A writ of mandamus is sought requiring the Industrial Commission to hear such application for award in pursuance of Section 1465-86, General Code, as it existed at the time of the filing of relator's application for modification of award.
The relator in each of the other cases, Brooker v. Industrial Commission and Hardesty v. Industrial Commission, seeks an order compelling the Industrial Commission to conduct a rehearing upon his claim. The facts set up in each petition, however, disclose that more than ten years have elapsed since the last payment of compensation or award of benefits on account of relator's injury had been made.
Mr. G.C. Maxwell and Mr. Orman G. Terry, for Boswell, relator.
Mr. Clarence L. Corkwell, for Calvert, relator.
Messrs. Moreland Moreland and Mr. Jesse K. George, for Johnson, relator.
Mr. Orman G. Terry, for Brooker, relator.
Mr. Frank C. Leyshon, for Hardesty, relator.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for the Industrial Commission.
The action of the Industrial Commission in denying further compensation is based upon the provisions of Section 1465-86, General Code, as amended in 1931 (114 Ohio Laws, 38), which amendment became effective July 8, of that year. The portion thereof pertinent to this inquiry is as follows:
"The powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion may be justified. Provided, however, that no such modification or change or any finding or award in respect of any claim whether filed heretofore or hereafter shall be made with respect to disability, compensation, dependency or benefits, after ten years from the last payment theretofore made of compensation or benefits awarded on account of injury or death, or ten years after the injury in cases in which no compensation ever has been awarded."
It is to be observed that this provision relates to the continuing jurisdiction of the commission, and places an express limitation of ten years thereon, under the conditions stated. Under the clear provisions of this amended statute the jurisdiction of the commission with reference to such claims terminates ten years after the last payment of compensation, or ten years after the injury in cases in which no compensation had been awarded.
It is claimed that the recognition of relator's injury as compensable, and the allowance of his application for award, gave him a vested right to compensation for such impairment of his earnings as developed from his injury, which right cannot be impaired or affected by subsequent legislation. It is urged that if the amended section is remedial in character, and is construed as a statute of limitations, it does not provide a reasonable length of time within which to file a supplemental application prior to its effective date, and would therefore be unconstitutional; and further that the statute would not be of uniform operation as applied to all claimants coming under the same classification. It is further urged that under the statute all the Industrial Commission could do upon the hearing of plaintiff's original claim was to determine whether he was entitled to participate in the state insurance fund, and that when it found in the affirmative he thereby became vested with the right to such compensation as would appear due him in the future for actual impairment of his wages resulting from such injury, and that that could not be ascertained until a time when he would actually sustain such impairment. Prior to the amendment involved in this action there was in the statute no prescribed limitation except as to the time of filing the original claim for benefits. The only limitation prescribed for impairment was in the gross maximum sum specified. There is no question of statutory construction or interpretation presented. The language of the amended statute is clear. The only question presented is whether the amended statute is valid in so far as it affects claims filed prior to its enactment.
The provisions of Section 26 of the General Code that pending proceedings are not affected by statutory amendments unless so expressly provided cannot possibly have any application here, for the ten-year limitation of Section 1465-86, General Code, is by clear and concise language made applicable to "any claim whether filed heretofore or hereafter." The precise contention then of each of the several relators is that by reason of the unlimited jurisdiction of the Industrial Commission under the original provisions of Section 1465-86, General Code, he could reassert his claim for compensation throughout an indefinite period of time upon the development of any disability or impairment which could be connected with or traced to the injury upon which the initial claim was based, and that such provision creates in him a vested right which no statute can divest or modify.
This contention loses sight entirely of the nature of the right involved. It is not a common-law right, but one solely of statutory creation under authority of Section 35, of Article II of the state Constitution. The award made pursuant to the statute had no relation to common-law negligence. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct., 524, 61 L.Ed., 1086, L.R.A., 1918C, 451, Ann. Cas., 1917E, 900; Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405; State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St. 271, 143 N.E. 574.
In the course of the opinion in the first case cited, the court say: "The remedy which the compensation Statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court * * *." In the last case cited this court held the commission was authorized to revoke an award, and that unpaid installments thereof should not go to the personal representative of a dependent who died before all the installments of said award had been paid. In the course of the opinion, by Marshall, C.J., language is used which is quite pertinent here: "Workmen's compensation administration is not circumscribed by the limitations which usually attach to the finality of judgments rendered by courts, because its orders are clearly recognized as purely administrative, and not judicial, and full power and authority is conferred to make modifications and changes with respect to former findings or orders as in the opinion of the commission may be justified. Section 1465-86, General Code."
The jurisdiction of the Industrial Commission is continuing only because the statute made it so. It could have been originally provided otherwise. It could have been made to continue for a stated period. The authority, having been conferred by statute, may by it be modified or withdrawn.
The award made by the Industrial Commission is in each instance based upon the disability shown to have resulted from the injury sustained. To take care of probable future contingencies — a recurrence of disability or subsequent impairment due to the injury — authority was conferred upon the commission to take cognizance thereof. The right of claimant could at best be but a contingent right subject to change or modifications by statute. The Constitution itself, in authorizing the passage of laws establishing the fund for such compensation, directs that it shall be "administered by the state, determining the terms and conditions upon which payment shall be made therefrom." Article II, Section 35. This power clearly granted by the Constitution is not modified or restricted by any other provision.
The fact that an application for modification of award had been filed, and was pending at the time of the passage of the amended section, does not affect the question. Whatever rights existed were by virtue of the statute and were the same whether an application, for which the statute makes no provision, was or was not filed.
The provisions of the amended statute are fully and clearly authorized by the Constitution itself, and are therefore valid and enforceable. The demurrers in cases Nos. 23240, 23281 and 23348 are sustained, and in case No. 23203 a judgment is rendered against the relator upon the stipulated facts. In each case the writ of mandamus prayed for is denied.
Writs denied.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.