Decided May 22, 1940.
Workmen's compensation — Computation of death award from date of injury — Section 1465-82, General Code — Mandamus denied to compel additional award.
In a per curiam opinion appearing in 136 Ohio St. 45, 23 N.E.2d 632, this court sustained a demurrer to the original petition in mandamus, holding that there were insufficient allegations to support the conclusion of an abuse of discretion.
Upon leave an amended petition was filed. During oral argument upon a demurrer thereto counsel for relatrix abandoned the first amended petition and asked leave to file a second amended petition, which request was granted.
The relatrix prays for a writ commanding the Industrial Commission to grant a hearing and to award her compensation for eight years from January 4, 1934, which was the date when the deceased's condition was first diagnosed, or in the alternative from April 11, 1935, to May 6, 1939, the latter being eight years from the date of the last alleged "injury."
The cause was submitted upon demurrer to the second amended petition.
Mr. Alexander Mintz, for relatrix.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The additional allegations relating to abuse of discretion summarized are that the Industrial Commission willfully ignored the testimony of a physician called on behalf of the claimant and of another physician who testified on behalf of the commission, and arbitrarily chose January 23, 1930, the date of the first alleged "injury," without regard to medical facts and testimony. Considered in the most favorable light for the relatrix, the averred testimony contributes nothing to establish abuse of discretion. The second amended petition contains the identical allegations of the original petition that the four accidental exposures proximately caused decedent's death. In adopting the date of the first alleged injury instead of the last or an intermediate date, the Industrial Commission cannot be charged with an abuse of discretion or failure to perform a duty imposed by law.
Section 1465-82, General Code, fixes, "eight years after the date of the injury" as the maximum period for the payment of compensation for death. (Italics ours.)
In view of the express language of that section the Industrial Commission was not required to adopt either the date of disability or the date of the "last injury," as urged by the relatrix, in determining the time from which the eight-year limitation ran.
The demurrer will be sustained and a writ of mandamus will be denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.