Opinion
Decided November 17, 1927.
Workmen's compensation — Appeal to common pleas court — Section 1465-90, General Code — Compensation awarded and paid for maximum period — Application for modification for newly discovered disability — Appeal lies within 30 days after denial of modification — Verdict for claimant for "$12 for life" sufficiently definite.
1. Where compensation claimant was awarded compensation for injuries to an eye, his subsequent application for further compensation, though designated as one for modification of original award, was in fact a new application, and from commission's action thereon claimant could take an appeal under Section 1465-90, General Code, within 30 days; the right to appeal not being denied because application for modification was not filed within 30 days after original award.
2. Where in compensation proceedings jury were fully and carefully instructed that amount allowed claimant should be a definite amount per week to be paid a certain length of time, held, that a verdict finding for plaintiff "in the sum of $12 — for life" was sufficiently definite to support judgment for claimant.
ERROR: Court of Appeals for Lawrence county.
Mr. R.R. Zurmehly, for plaintiff in error.
Messrs. Irish Riley, for defendant in error.
This proceeding is prosecuted to reverse an award made by a jury in the court of common pleas of Lawrence county in favor of defendant in error in an action brought by him against plaintiff in error on an appeal, under favor of the provisions of Section 1465-90, General Code.
The facts involved are substantially as follows: On the 18th day of November, 1921, Monroe, while employed as a coal miner, received an injury from a piece of coal which hit him in the left eye. On December 2, 1921, Monroe filed an application with the Industrial Commission for compensation on account of said injury. This application was acted on favorably to Monroe, and such proceedings were finally had that on May 15, 1922, the commission found that Monroe had lost 75 per cent. of the vision of the left eye, so injured, as aforesaid, and thereupon made a final award for said injury for the maximum amount per week allowed by the statute, said award to continue for the term of 75 weeks. Section 1465-80, General Code. No further proceedings were had until February 1, 1926, when Monroe filed an application for a modification of said award, based upon the following claim:
"The original award herein was made for the loss of an eye. Since September, 1923, claimant's other eye has become and is infected, and affiant is fast losing sight, and physicians advise that in a few months affiant will become totally blind."
The Industrial Commission granted a hearing on this application and subsequently denied the same, from which disposition of the claim Monroe filed an appeal in the court of common pleas within 30 days from the day the application was denied. The case was then heard in the court of common pleas, and Monroe was allowed compensation by a jury for total disability.
It was contended in that court, and is now contended here, that the court of common pleas had no jurisdiction to entertain the appeal for the reason that it was not made within 30 days from the day the commission had finally disposed of the claim. This contention is based on the theory that the finding and order of the commission made on May 15, 1922, was a final disposition of Monroe's claim for an award. It is urged that this position is supported by the case of Industrial Commission v. Glenn, 101 Ohio St. 454, 129 N.E. 687, wherein the Supreme Court held that the denial of an application for a rehearing, filed more than 30 days after the claim had been denied, was not the proper basis for an appeal. We cannot concur in this contention. If it is sound, then in all applications for a modification of an award, based upon conditions arising more than 30 days after the award has been made, the applicant it without any right of appeal, regardless of the action of the commission or the merits of his claim. Under the circumstances of the instant case, while the application is designated as one for a modification of the original award, it is in fact a new application, founded upon an additional disability not apparent at the time of the original award. When the application was made and granted, the commission reopened the whole matter. After it was reopened it is not disputed that the commission had power to make an award covering the newly discovered disability. If the commission had power to either allow or disallow compensation for this newly discovered disability, then it must follow that an appeal would lie from that action of the commission.
We hold, therefore, that the court of common pleas had jurisdiction on appeal.
It is further urged in support of the petition in error that the trial court erred in permitting the jury to correct its verdict after it had returned the same and was excused from further consideration of the case. The verdict as first returned by the jury is as follows:
"We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff and assess the amount due the plaintiff from the defendant, the said Industrial Commission of Ohio, in the sum of $12 — for life."
Without stating in detail what was then done by the court, it is sufficient to say that this verdict, in our opinion, was sufficiently definite to support the judgment. The statute law provides that the award of the jury shall be a certain amount per week, and makes no further provision except as to the term for which said award shall continue. The court in its instructions to the jury followed the statute and carefully and fully explained to them that if they found in favor of the claimant they should allow a definite amount per week, to be paid for a certain length of time, to be determined by the nature and character of the injury suffered. So the jury were fully informed when they made their verdict that any amount they allowed was upon the basis of an award per week. Manifestly, therefore, when they fixed the sum of $12 for life, they intended and could only intend that amount to be paid per week, for life. This conclusion makes it unnecessary to discuss the legal effect of what was done by the court and the jury in an attempt to correct the verdict.
There are some further complaints made by the commission which we think are without merit, and are therefore overruled. We do not consider them supported by facts sufficient to justify any further discussion.
Judgment affirmed.
SAYXE, P.J., and MAUCK, J., concur.