Opinion
No. 27045
Decided December 14, 1938.
Workmen's compensation — Rule-making power of Industrial Commission — Rules must not conflict with statute — Waiver of physician-patient privilege cannot be required — Sections 1465-44 and 11494, General Code.
1. Under the rule-making power conferred upon the state Industrial Commission by the provisions of Section 1465-44, General Code, it is not authorized to adopt and enforce a rule in conflict with the express provisions of statute.
2. The provisions of Section 11494, General Code, protecting as privileged the communications of patient and physician in that relation, confer a substantial right, waiver of which may not be required by the state Industrial Commission as a condition precedent to the consideration of an application for workmen's compensation.
APPEAL from the Court of Appeals of Franklin county.
This is an action in mandamus which originated in the Court of Appeals of Franklin county. The questions of law are presented by demurrer to the answer in the decision of which the following are the pertinent and essential facts:
The relator, Wilbur Galloway, an employee of the Spicer Manufacturing Company, a self-insuring employer, claiming an injury to his eye, filed an application for adjustment of claim. In this application he set forth an injury which occurred the latter part of October or first of November, 1933, by reason of metal striking the right eye but affecting both eyes and causing total disability. That application was disallowed by the commission upon the ground that the disability claimed did not result from injury in the course of employment. An application for rehearing was duly filed, which is still pending.
On March 22, 1937, relator filed a second application wherein he claimed injuries as a result of an accident which occurred on March 5, 1934, caused by a cleaning compound being thrown in his face from a combustion washer while in the course of his employment, which caused permanent total disability due to the loss of vision.
The blank form of application for adjustment of claim contains a clause wherein the claimant waives the provisions of law forbidding disclosure of knowledge or information by his physician. This waiver provision was erased by the relator in the second application for adjustment of claim filed by him. Thereafter the employer filed motions to require the claimant to elect upon which claim he would proceed, and upon consideration thereof, the Industrial Commission entered the following order in both claims:
"1. That the claimant is ordered to elect as to whether he will pursue his right to receive compensation under the application in claim No. 251977-22, or proceed under claim No. 241354-22.
"2. That claim No. 241354-22 or claim No. 251977-22 be dismissed with prejudice at the election of the claimant.
"3. That if the claimant elects to proceed under claim No. 251977-22 and dismisses with prejudice claim No. 241354-22 it is the order of the commission that further proceedings be stayed until such time as claimant withdraws 'The Application for Adjustment' of claim No. 251977-22 and files a new application for adjustment of claim on the form provided by the commission, without any reservation as to privileged communications."
Upon the refusal of the claimant to comply with the order thus made, the Industrial Commission refused to take further action and this proceeding in mandamus was instituted by the relator to require the respondent to consider his second application for adjustment of claim and to determine his rights to compensation thereunder. Upon consideration of the issue presented, the Court of Appeals directed that a peremptory writ of mandamus issue as prayed. Thereupon appeal was perfected to this court to procure a reversal of that judgment.
Mr. Harry P. Hood and Messrs. Wardlaw, Gertner Armstrong, for appellee.
Mr. Herbert S. Duffy, attorney general, Mr. Eugene Carlin and Mr. W.J. Higley, for appellant.
The question first in importance in this case is whether the Industrial Commission is authorized under its rule-making power conferred by Section 1465-44, General Code, to require an applicant for workmen's compensation, as a condition precedent to a consideration of his claim, to sign and file a waiver providing as follows:
"By signing this application I expressly waive, on behalf of myself and of any person who shall have any interest in this claim, all provisions of law forbidding any physician or other person who has heretofore attended or examined me, or who may hereafter attend or examine me, from disclosing any knowledge or information which they may thereby acquire."
It is contended by counsel for the respondent that such a requirement may be prescribed and enforced by the commission by reason of the broad powers conferred upon it by the statutes to adopt rules and regulations with respect to the presentation and consideration of claims for compensation, under which rules so adopted it has prepared and prescribed forms of notices, applications, proofs, certificates, etc., and requires that such forms must be used in all cases. Based upon an argument of necessity or expediency, it is thus contended that a commission may, by rule adopted under general authority conferred by the law-making power, repeal the clear and express provisions of Section 11494, General Code, protecting as privileged the communications of patient to physician in such relation. The right to workmen's compensation conferred by law would thus be restricted by a rule of the commission and limited to those who would expressly renounce certain definite substantive rights in accordance with the commission's requirement. The mere statement of the proposition contains its own refutation.
The decision of this court in the case of Industrial Commission v. Warnke, 131 Ohio St. 140, 2 N.E.2d 248, cannot be tortured into an authority for the proposition here advanced by respondent. The only question presented in that case and the only question decided, as shown by the syllabus, was whether one claiming compensation as a dependent of a deceased workman could waive the privilege conferred by the statute. The court did not decide that Section 11494, General Code, had been repealed by implication by the workmen's compensation law and made no suggestion that waiver of the right could be compelled by the Industrial Commission.
If there is to be any modification of the provisions of this statute in the respect involved here or otherwise, that is the province of the legislative branch of the government. Davis v. State, ex rel. Kennedy, 127 Ohio St. 261, 187 N.E. 867. Some such modifications have been made in other states. 5 Wigmore on Evidence (2 Ed.), Section 2380. The medical examinations to which a claimant may be required to subject himself under the provisions of Section 1465-95, General Code, do not involve the physician-patient relation and require no waiver for their enforcement.
Going now to the second question presented, we are of opinion that the claimant is entitled to present and prosecute both claims and is not required to elect at his peril upon which one he must rely. The applications disclose that injuries for which compensation is claimed were sustained in the same employment, at different times, but which one, if either, resulted in the permanent disability asserted may be difficult of ascertainment. The claimant should not have been required to dismiss either claim as a condition precedent to the prosecution of the other.
It follows that the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.
DIXON, J., not participating.