Opinion
No. 24828
Decided February 20, 1935.
Mandamus — Writ lies only to compel performance of duty specially enjoined — Workmen's compensation — Attorney fee not payable — Injured claimant died subsequent to favorable finding on appeal — Death award granted widow.
1. An action in mandamus is available only to compel the performance of a duty specially enjoined by law.
2. The Industrial Commission is neither required nor authorized by statute to direct the payment of a fee to claimant's attorney from the Workmen's Compensation Fund, where the claimant died subsequent to a finding in his favor by the Court of Common Pleas upon appeal and prior to any action of the commission pursuant to such finding. No award having been made, there was no basis for the computation or allowance of an attorney fee.
3. The Workmen's Compensation Law does not authorize the allowance and payment of an attorney fee from the Workmen's Compensation Fund where an award was made by the commission to a widow, on account of the death of her husband resulting from an injury sustained in the course of his employment, and where there was no appeal and no proceeding in court upon her claim for compensation.
IN MANDAMUS.
This is an original action in mandamus in this court. The relators, William and Walter S. Gordon, seek a writ requiring the respondent, the Industrial Commission of Ohio, to issue a voucher to them covering attorney fees claimed to be due for services rendered in the prosecution of a claim for workmen's compensation, and pursuant to the allowance of such fee by the trial court.
The relators, as the duly employed and acting attorneys of an employee of a contributor to the Workmen's Compensation Fund, prepared, filed and prosecuted his claim for compensation for injuries claimed to have been sustained in the course of his employment. Upon rejection by the commission, appeal was taken to the Court of Common Pleas, which resulted in a finding favorable to the claimant's right to participate in such fund, and thereupon the court fixed attorney fees to be paid relators as claimant's attorneys "from the Workmen's Compensation Fund as provided by statute and the amount thereof is fixed at 20% of the first $500.00 of such compensation as the said Industrial Commission may hereafter award in this case, and 10% of any such sum as may be awarded in excess of $500.00, the entire fee not to exceed the maximum of $500.00 allowed by law."
Thereafter the Industrial Commission duly prosecuted error to the Court of Appeals, but subsequently, to wit March 21, 1932, dismissed its proceeding in error. The claimant died as a result of his injuries on March 26, 1932. Thereafter the relators, on behalf of the widow and dependents of said deceased employee, filed a death claim with the Industrial Commission which was subsequently allowed, and award duly made to the widow and dependents. No action had been taken by the Industrial Commission upon the claim of the employee subsequent to the finding and order of the Common Pleas Court, and hence no determination of the amount of his award was reached, and no payment was made, or ordered to be made, to said injured employee. The commission refused payment of said attorney fees claimed by the relators, its finding and order in that respect being as follows: "That the Commission find that the claimant died while the injury claim was pending in the Court of Appeals after judgment was rendered in the Court of Common Pleas and subsequently thereto the dependents of decedent filed a death claim which was allowed; that the Commission further find that there is no basis in law for the payment of compensation or attorney fees on the injury claim."
Messrs. William Walter S. Gordon, for relators.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
The principle involved in this case is a very fundamental one. The relators seek the issuance of a writ of mandamus, which is available only to compel the performance of a duty specially enjoined by law.
The respondent contends that the act thus sought to be compelled is not only not enjoined by law, but that it is unauthorized by law, and that the refusal to issue the voucher sought is based upon the want of legal authority so to do, as stated in their entry.
An examination of the statutes governing the Industrial Commission and its action and procedure in the administration of the Workmen's Compensation Fund will determine that question. Under the provisions of Section 1465-90, General Code, upon appeal to the Court of Common Pleas from an adverse finding of the Industrial Commission, the statute directs that, where the finding of the court or verdict of the jury is in favor of claimant's right to participate in the fund, such finding or verdict is to be certified to the Industrial Commission; and thereupon compensation shall be paid in the same manner provided for the payment of other awards. Authority to allow and fix an attorney fee is conferred upon the trial judge. That was done in this case, the entry of the court being in the language of the statute. As disclosed by the statements of facts, error was prosecuted from the action of the Court of Common Pleas, which was later dismissed; but immediately thereafter, and before any action by the Industrial Commission had been taken pursuant to the finding and order of the Common Pleas Court, claimant died. No award having been made by the commission, there was no basis whatever for the allowance or computation of an attorney fee under the statute.
In the proceeding upon appeal, neither the trial court nor the jury is authorized to determine the extent of the applicant's disability or the amount of compensation which he should receive, the determination of those questions being confided to the commission. Though authorized to fix an attorney fee in favor of claimant's counsel, the authority of the trial judge in that respect is limited to the method and to the percentages set forth in the statute. State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572; Fisher Body Co. v. Cheflo, 122 Ohio St. 142, 171 N.E. 31.
It follows that under the circumstances disclosed by this record, there was no statutory authority to proceed to determine the amount of compensation to be awarded the injured employee, and hence no basis whatever for the determination or award of fees to his attorney. There is no provision whatever in the statute for the payment of fees in such situation. The claim cannot be considered upon any equitable theory. It cannot be awarded unless expressly authorized by law. In the absence of such provision, it cannot be held that the commission has failed in the performance of a legal duty.
The relators have no ground for their application for writ of mandamus on account of the subsequent favorable action of the commission upon the widow's claim for compensation. That is an entirely separate and distinct claim, as held by this court in Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470; and Industrial Commission v. Davis, 126 Ohio St. 593, 186 N.E. 505, 88 A. L. R., 1175. Under the statute, there is no right to an attorney fee payable from the Workmen's Compensation Fund under the award to the widow, for the reason that such claim was allowed and award made by the commission, and it was before no court for consideration or action. As previously stated, there is no statutory provision covering the situation presented by this record, and therefore no statutory authority for the payment of the attorney fees in question out of the Workmen's Compensation Fund. It follows that the application for a writ of mandamus must be denied.
Writ denied.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, DAY and ZIMMERMAN, JJ., concur.