Summary
In Noggle v. Indus. Comm. (1935), 129 Ohio St. 495, an appeal to the court was taken by a claimant from an order finding him partially disabled, the claimant contending that the order should have found him totally and permanently disabled.
Summary of this case from Rummel v. FlowersOpinion
No. 25035
Decided May 29, 1935.
Workmen's compensation — Appeal — Section 1465-90, General Code — No appeal from finding partial disability and denying total and permanent disability — No appeal from finding of extent of disability, when — Statutes in pari materia — Sections 1465-86 and 1465-90, General Code — Continuing jurisdiction of Industrial Commission and modifying or changing former findings.
1. When the Industrial Commission assumes jurisdiction of a disability claim, finds that claimant's disability is but partial, and not total and permanent, and, upon such finding, denies compensation for total and permanent disability, such denial is not made upon a "ground going to the basis of the claimant's right" and is not subject to appeal under the provisions of Section 1465-90, General Code (107 Ohio Laws, 162). (The first paragraph of the syllabus in Industrial Commission v. Link, 122 Ohio St. 181, is overruled.)
2. When the commission concedes or finds all the facts in claimant's favor necessary to give it jurisdiction, and actually assumes jurisdiction of the claim, Section 1465-90, General Code, endows the commission with "full power and authority to hear and determine all questions within its jurisdiction and its decision thereon shall be final." A finding or determination of the extent of disability is the determination of a question within the commission's jurisdiction, and from such determination there is no appeal.
3. Section 1465-86, General Code, providing that the powers and jurisdiction of the commission shall be continuing and that it may, from time to time, modify or change its former findings or orders, and Section 1465-90, General Code, providing for appeal, are in pari materia, and, to make each effective, should be construed together. Permitting appeals from sundry findings involving the extent of disability would nullify the provisions of Section 1465-86, General Code, which not only invests the commission with continuing jurisdiction, but also confers power on the commission to modify or change, from time to time, its former findings " as, in its opinion may be justified."
CERTIFIED by the Court of Appeals of Marion county.
This cause was lodged in this court by reason of the certificate of the Court of Appeals of Marion county, stating that its judgment was in conflict upon the same question with the judgment pronounced by the Court of Appeals of Summit county in the case of O'Neill v. Lamb-Ritter, decided on February 20, 1934. The parties here stand in the same relation as they did in the Common Pleas Court where Sherman Noggle, the claimant, had appealed from an order of the Industrial Commission. It is admitted that on February 17, 1918, Noggle sustained injuries while employed by an employer who had contributed to the state Insurance Fund.
The proof tended to show that Noggle sustained serious injuries to both feet. The claimant's contention before the commission, and later presented in the trial court, was that these injuries caused him "to be totally and permanently disabled" and that the commission should have awarded him compensation for permanent total disability. This the commission refused to do and, while it admitted that the injuries were not self-inflicted and that they arose in the course of employment, it thought the proof showed him to be only partially disabled and made its award accordingly. At no time did the commission deny claimant compensation on the ground that his condition was not due to the injury sustained on February 17, 1918; nor did it find that it had no jurisdiction of the claim or jurisdiction to inquire into the amount of compensation that should be awarded.
The record discloses that upon various hearings prior to its last and final order the commission had found that Noggle sustained temporary partial disability, and had paid him the full amount of $3750 allowed by law for temporary partial disability, covering a period extending to July 9, 1932. On October 28, 1932, the commission, by unanimous vote, entered the following final order, to wit: "The Commission finds from proof of record that the claimant is still partially disabled as the result of this injury, and that it has heretofore paid the maximum amount allowed by law for partial disability, and is therefore without jurisdiction to make a further award in the case." From this order of the commission, rehearing being denied, the claimant appealed to the Common Pleas Court, which heard the cause, no jury having been demanded. Prior to the introduction of the evidence, the commission moved the court that the "case be dismissed for the reason that the pleadings show that the court has no jurisdiction of this cause of action." The trial court reserved the decision upon the motion until after he had heard all the testimony. At the close of the evidence, the commission again moved for dismissal because the court had no jurisdiction over the action. These motions were overruled by the court upon the authority of State, ex rel. Araca, v. Industrial Commission, 125 Ohio St. 426, 181 N.E. 870. Thereupon the trial court rendered judgment for the claimant, finding that he was permanently and totally disabled and entitled to compensation under Section 1465-81, General Code. It fixed the amount of his compensation in the sum of $12 per week, payable from July 9, 1932, as long as the claimant continued to live. An allowance of $194 attorney fee was made, based upon claimant's expectancy of life. The Industrial Commission prosecuted error to the Court of Appeals of Marion county, and that court, on August 27, 1934, reversed the judgment of the trial court and rendered final judgment for the commission on authority of State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691, and Metal Specialty Co. v. Gregory, 128 Ohio St. 452, 191 N.E. 701.
Mr. J.W. Jacoby, for plaintiff in error.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for defendant in error.
Noggle was injured and made his application in February, 1918. His counsel, therefore, contends that his right of appeal is governed by the statute in force at the time of filing his application under the principle announced in Industrial Commission v. Vail, 110 Ohio St. 304, 143 N.E. 716, and W. S. Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N.E. 790. Accepting his viewpoint on that question, we will consider the construction of that part of the section which relates to the right of appeal from the Industrial Commission to the Common Pleas Court.
Section 1465-90, General Code (107 Ohio Laws, 162), before amendment in its present form, read as follows: "The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such commission denies the right of the claimant to participate at all or to continue to participate in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant's right, then the claimant, within thirty (30) days after the notice of the final action of such commission, may, by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. * * *" It will be noted that this section confers full power upon the commission to determine all questions within its jurisdiction, and that its decision thereon (questions within its jurisdiction) shall be final. It then provides that if the commission's final action denies the right of the claimant to participate in the fund on one of three grounds, he may file an appeal. Those grounds are, (1) that the injury is self-inflicted, (2) that the injury did not arise in the course of employment, and (3) any other ground going to the basis of the claimant's right. Counsel for Noggle contends that the failure of the commission to award him compensation for permanent total disability is a denial "going to the basis of the claimant's right" and that the claimant has the right to appeal. Such a denial does not go to the basis of his right. The basis of his right to compensation was conceded by the commission. It admits that the injury was not self-inflicted, that it arose in the course of employment, but denies only the amount of compensation which he claims he is entitled to receive; or, stating the exact issue in the case, it denied him the right to receive, during his life time, the statutory compensation given to one who is permanently and totally disabled when it found the proof established partial disability only.
The basis of claimant's right rests upon the establishment of jurisdiction in the commission to hear and determine his right to participate at all or to continue to participate; when that jurisdiction has been conceded or when the commission finds all the facts in claimant's favor necessary to give it jurisdiction, then the statute specifically states that the commission has full power to "determine all questions within its jurisdiction, and its decisions thereon shall be final." To hold that a claimant may appeal from the extent of disability or from the amount of compensation awarded or denied would make the quoted clause meaningless, for it is difficult to conceive a case where the commission's decision would be final if a claimant could appeal from a mere denial of the amount claimed by him, when the denial is based on the extent of his disability or upon a disputed amount of weekly wage received. To so hold would permit appeals in every disability case where the issue was whether the disability was total or partial, and in every case where it was claimed the allowance was too low. Moreover, the adoption of the theory advanced by plaintiff in error might lead to repeated appeals to the court from unsatisfactory awards made by the commission from time to time, thus ignoring the continuing jurisdiction given to the commission by the statute to which we shall now allude.
That statute is Section 1465-86, General Code, pertaining to the commission's continuing jurisdiction. The following provision thereof is the same now as it was when this accident occurred, and reads 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." This section was intended to grant opportunity for a claimant to apply for greater compensation, such as increases from partial to total disability if his condition should warrant it; and, on the other hand, if his earlier total disability becomes partial or if the claimant completely recovers, the commission, under this section and upon proper showing, "may from time to time make such modification or change with respect to former findings or orders * * * as, in its opinion may be justified." Upon the question of appeal, Sections 1465-86 and 1465-90, General Code, should be read in pari materia, and together construed, since they form a complete scheme for the protection of the claimant and also for the protection of the fund. But if the theory of counsel for Noggle prevails, the vitality of Section 1465-86, General Code, is destroyed. Permitting appeals to the court from sundry findings involving the extent of disability and at the same time permitting retention of jurisdiction in the commission on questions involving the character of disability and the amount of compensation to be awarded are not only inconsistent, but would effectively nullify the provisions of the latter section. Let us apply such theory to the case at bar. Here the issue was whether the claimant was permanently and totally disabled. The commission found he was not. He appeals and the trial court finds he was totally disabled and awards him compensation, in conformity with the then statute, for total disability for life. Can such judgment be modified by the commission under its continuing jurisdiction should it thereafter appear that the claimant had wholly recovered? If the amount of disability compensation be appealable, as claimed, and the efficiency of the continuing jurisdiction be also upheld, the extent of disability would be bandied between commission and court after each order of denial. These features clearly demonstrate it was never the intention of the Workmen's Compensation Law to permit appeals from orders of the commission relating to the extent of disability and the amount of compensation which a claimant should receive, and furnish a convincing reason for the inclusion of the clause in Section 1465-90, General Code, providing that the commission has full power to determine all questions within its jurisdiction and that its decisions thereon should be final. For what boots it if, having taken jurisdiction, the commission's finality of decision is set aside by a jury's verdict on appeal?
There has been some confusion in our reported cases as to when a commission's order may or may not be appealed. Much of this confusion arises from the doubtful character of the commission's orders. But, with one or two exceptions, this court has consistently held that the right of appeal is given only when the commission bases its denial of the right of claimant to receive compensation upon its finding that it has no jurisdiction of the claim.
The Summit county decision, certified to be in conflict with the instant case, seemed to rely upon the following cases, to wit: State, ex rel. Araca, v. Industrial Commission, supra; State, ex rel. Cezkovsky, v. Industrial Commission, 126 Ohio St. 434, 185 N.E. 807; Industrial Commission v. Phillips, 114 Ohio St. 607, 151 N.E. 769; and Industrial Commission v. Link, 122 Ohio. St., 181, 171 N.E. 99. The Araca case, supra, was modified in the Depalo case, supra, recently decided by this court. The Cezkovsky case, supra, supports our present conclusion that, in order to have a rehearing and an appeal, the denial of claimant's right to compensation must be based upon a finding of the commission that it "has no jurisdiction of the claim." In the Phillips case, supra, the statement of facts discloses that appeal was allowed because the commission found that claimant's disability was not due to the accident or that his injuries did not result therefrom. In the Cezkovsky case, supra, we decided that if the commission found that the "disability * * * was not the result of the injury sustained," a rehearing should be allowed, thus entitling claimant to appeal. The Link case, supra, does lend support to the Summit county decision. Three members of this court refused their concurrence therein. The case chiefly relied on in the Link case was the Phillips case, supra, which is clearly distinguishable from this, since appeals were permitted because the commission had found, in substance, that the injuries were not due to the accident. The majority in the Link case clearly misconceived and misapplied the principle announced in the Phillips case (in which the same judges had all previously concurred), and fell into error in its misapplication. The Link case is not only not supported by the Phillips case, supra, but it is not in accord with our many decisions holding that the commission must find that it has no jurisdiction of the claim before an appeal can be had. The first paragraph of the syllabus in the Link case is therefore overruled.
In 1925, Section 1465-90, General Code, was amended by the inclusion of the clause, "including the extent of disability and amount of compensation to be paid in each claim". That the inclusion of that clause did not fundamentally change the right of appeal is evidenced by the second paragraph of the syllabus in the early case, Snyder v. State Liability Board of Awards, 94 Ohio St. 342, 114 N.E. 268. The section then read as it did at the time of Noggle's injury and did not contain the included clause inserted in the amendment of 1925. That was also a disability case where an award was made and appeal attempted. This court held that, owing to the continuing jurisdiction provided by Section 1465-86, an appeal from the disability award did not lie. The Snyder case, supra, was quoted and relied upon in the case of Industrial Commission v. Hogle, 108 Ohio St. 363, 140 N.E. 612, where the right of appeal was sought but denied under the construction given to the provisions of Section 1465-90, General Code, as they read before the inclusion of the foregoing clause inserted in the amendment of 1925. The same conclusion is also supported by the following recently decided cases holding that the right of appeal depends upon the fact whether the record and final order of the commission disclose that its denial of claimant's right to receive compensation is based upon a finding that the commission has no jurisdiction of the claim. State, ex rel. Depalo, v. Industrial Commission, supra; Metal Specialty Co. v. Gregory, supra; State, ex rel. Gerard, v. Industrial Commission, 128 Ohio St. 558, 192 N.E. 730. These as well as earlier cases, hold that a finding of the commission within its jurisdiction, such as determining the extent of disability, is a final decision from which there is no appeal. The last word spoken by this court upon this subject, and concurred in by every member, was in the Gerard case, supra, wherein the per curiam opinion ends with the following language: "It has been announced in numerous decisions of this court that under this statute a claimant is entitled to a rehearing only when the Industrial Commission bases its denial of the right of claimant to receive compensation, or to continue to receive compensation, upon its finding that the commission has no jurisdiction of the claim." These later decisions, concurred in by every participating member of the court, were rendered after the conflict case arising in Summit county had been decided. Had the Summit county Court of Appeals had the benefit of these decisions, probably its judgment would have been otherwise and this case would not have reached the lap of this court by way of certification.
We have assumed the task of pointing out not only that our past decisions have generally upheld the construction we now and heretofore have given to Section 1465-90, General Code, but that any other construction would devitalize the statute conferring finality of decision upon the commission and would, by judicial interpretation, nullify the effectiveness of Section 1465-86, conferring continuing jurisdiction upon the commission. If the latter section is to be repealed, that duty rests not upon the court but upon the Legislature.
The record of this case discloses that the commission made no finding that it had no jurisdiction of the claim, but found that, having paid the maximum amount allowed for partial disability, they had no jurisdiction "to make a further award." The lack of jurisdiction must appear affirmatively from the record; it is not presumed. "It must appear that the Commission's denial was based upon a finding that it had no jurisdiction of the claim and no authority to inquire into the extent of disability or the amount of compensation. There is no presumption that a finding of the Commission denying the right to continue to receive compensation is based upon jurisdictional grounds." State, ex rel. Depalo, v. Industrial Commission, of Ohio, supra. In addition to this, not only did the commission not make any finding that it had no jurisdiction, but, conceding all the basic facts upon which claimant applied for compensation, it actually assumed jurisdiction and awarded compensation for partial instead of total disability. Since the case was not appealable, the Common Pleas Court should have sustained the motion of the commission to dismiss the appeal. In refusing to do so, it erred. The judgment of the Court of Appeals of Marion county, reversing that of the trial court, will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.