Opinion
No. 26714
Decided June 1, 1938.
Workmen's compensation — Employer paid employee salary during disability — Employee not entitled to compensation for temporary total disability, when — Section 1465-79, General Code.
IN MANDAMUS.
This action in mandamus was brought originally in this court and was submitted upon an agreed statement of facts.
Printz Biederman Company is a corporation engaged in the manufacture of women's garments with its principal place of business in the city of Cleveland, Ohio, and at all times has complied with the requirements of the Workmen's Compensation Act and has duly paid into the State Insurance Fund all required premiums.
The relator, Eli L. Rubin, has been employed by Printz Biederman Company for about fourteen years. His work consists in selling goods in the southwest portion of the United States and also in assisting with selling and office work in the place of business in Cleveland.
On August 9, 1934, relator, in the course of employment, sustained an injury consisting of a left inguinal hernia; on April 28, 1935, entered a hospital and the next day was operated on for the hernia. Following the operation he was disabled from the performance of all labor for about six weeks. As a direct result of the injury, he suffered a temporary total disability from April 28, 1935, to June 10, 1935.
Every two weeks during the year 1934, the relator received a salary check from the employer for $104, although he performed no labor and continued to receive pay at the same rate during the entire period of disability.
The agreed statement of facts also contains the following:
"The salary paid by his employer to the relator during the aforesaid period of disability was duly reported by the Printz Biederman Company to the Industrial Commission of Ohio in the payroll report thereafter filed by the employer with the Industrial Commission of Ohio, in accordance with the rules of the Industrial Commission.
"The salary which was paid to the relator during the period he was totally disabled was not paid by the employer nor received by the relator as advances upon any anticipated payments of compensation by the Industrial Commission. It was not expected by the employer that it would be reimbursed by the relator for such payments in the event compensation should subsequently be awarded and paid by the Industrial Commission. If compensation is hereafter awarded and paid to the relator by the commission, there has been and is no agreement on the part of the relator to pay any part of such compensation to his employer, and no part of it will be paid to the employer."
An application for compensation was duly filed by the relator with the Industrial Commission of Ohio and the commission made the following order:
"Ordered that the claim be allowed on rehearing; that compensation and medical expenses be paid as approved."
The commission made another finding on July 14, 1937, which reads: "This claim being considered further on proof filed pursuant to the commission's order of June 29th, 1937, the commission being duly advised from proof of record, finds that claimant's wages were continued during his period of disability, therefore, no authority for payment of compensation over the period from April 28th, 1935, to June 10th, 1935."
All medical, surgical and hospital expenses have been paid, but the commission has refused to pay compensation for the period of total temporary disability for the reason relator's wages were continued throughout the whole period.
Messrs. Woodle Wachtel, for relator.
Mr. Herbert S. Duffy, attorney general, and Mr. Eugene Carlin, for respondent.
The sole question presented is whether an employee who has received his regular wages during the period of temporary total disability is entitled to compensation for such disability under the Workmen's Compensation Act.
Section 1465-79, General Code (110 Ohio Laws, 224), reads: "In case of temporary disability, the employee shall receive sixty-six and two-thirds per cent of his average weekly wages so long as such disability is total, not to exceed a maximum of eighteen dollars and seventy-five cents per week, and not less than a minimum of five dollars per week, unless the employee's wages shall be less than five dollars per week, in which event he shall receive compensation equal to his full wages; but in no case to continue for more than six years from the date of the injury, nor to exceed three thousand, seven hundred and fifty dollars."
Unless there is some other provision in the statutes bearing on the rights of the parties, the relator would be entitled to compensation notwithstanding the payment of regular wages. Respondent claims such a provision is found in Section 1465-68, General Code, which reads: "Every employee mentioned in Section 1465-61, who is injured, * * * shall be paid such compensation out of the State Insurance Fund for loss sustained on account of such injury * * *."
Counsel for respondent in their brief assert: "It is the contention of the respondent that the relator is not entitled to receive any award from the State Insurance Fund unless he has sustained a 'loss.' During the entire period of disability he was paid his regular wage; therefore, he sustained no 'loss.' "
The further concession is made by counsel for respondent that the employer was under no obligation to pay wages to the employee.
In Industrial Commission v. Royer, 122 Ohio St. 271, 171 N.E. 337, the court in construing Section 1465-80, General Code, held that an employee who suffered a partial disability as the direct result of an injury sustained in the course of employment is entitled to compensation even though he earns, during the period for which compensation is sought, an amount equal to or more than his wages at the time of the injury.
Under Section 1465-80, General Code, however, the allowance for partial disability is based on impairment of earning capacity; on the contrary, Section 1465-79, General Code, allows a percentage of the average weekly wages for temporary total disability. There is evidently a distinction between the two sections. Under Section 1465-80, the loss sustained is an impairment of earning power; under Section 1465-79, it is loss of wages. Under the circumstances existing in the case at bar there was no loss and therefore no right to compensation for the disability; consequently, the relator is not entitled to a writ of mandamus.
Writ denied.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.