Decided November 29, 1933.
Workmen's compensation — Mandamus denied to compel rehearing — Writ applied for over four years after claim reconsidered and disallowed.
This is an original mandamus action in which this court is asked to command the respondent, the Industrial Commission, to grant the relatrix a reheating of her claim as provided by Section 1465-90, General Code.
The petition alleges, in substance, that she is the widow of William A. Taylor, who, at the time of his injury, was a policeman in the employ of the city of Alliance, a subscriber to the state insurance fund; that she made due application for all award; that said application was disallowed upon the ground of failure of proof that her husband's death was the result of an injury sustained in the course of, or arising out of, his employment; that thereafter on September 13, 1926, and within thirty days after the receipt of final notice of the disallowance, she had her attorney file the following application for a rehearing:
"In re Claim Number 18436 P. E. — W.A. Taylor;
"Industrial Commission of Ohio, Department of Claims, Columbus, Ohio.
"Gentlemen: The claimant herein makes application to your Commission for a rehearing in the above entitled claim. Yours very truly, F.E. Hunter."
The petition further alleges that on September 17, 1926, the Industrial Commission sent her a letter informing her that if would be necessary to use the inclosed form C-103, application for rehearing, and file it before the claim could be reheard; that on September 30, 1926, she complied with this request; that thereafter her application was dismissed for the reason that form No. C-103 was not filed within the statutory period of thirty days; that she then sought to appeal her cause to the Court of Common Pleas of Stark county, but her action was dismissed by the court on the ground that there never had been a rehearing by the Industrial Commission.
The answer of the respondent alleges two defenses.
The matter is now before this court on the respondent's motion for judgment on the pleadings.
Mr. John F. Cholley and Mr. F.E. Hunter, for relatrix.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
The conceded facts present several questions. However, the court is of the opinion that it is necessary to consider but the one relating to the subsequent action of the Industrial Commission, as outlined in the second defense of the answer. It appears that the relatrix filed a petition in error in the Court of Appeals seeking a reversal of the judgment of the Court of Common Pleas. After this error proceeding had been pending for some time, the relatrix abandoned this procedure by dismissing her petition in error. At approximately the same time, she filed with the Industrial Commission a paper designated as an application for reconsideration. Correctly or incorrectly this was granted, and another hearing was had, resulting again in a disallowance of the claim. No further action was taken until more than four years later, when the relatrix again requested a rehearing. After a hearing upon this request, the Industrial Commission approved the following journal entry:
"It appearing from proof of record that this claim was disallowed August 18th, 1926, thereupon application for rehearing was filed by the claimant and dismissed for the reason it was not filed within thirty days. An appeal was taken direct to the Common Pleas Court which appeal was dismissed upon motion of Counsel for the State Insurance Fund.
"An application for reconsideration was then filed with various affidavits. The claim was re-opened and thoroughly considered by the Commission and again disallowed April 20, 1928, but no application for rehearing has been filed since the Commission's order of April 20, 1928, disallowing this case. Therefore, there is nothing at this time which can be considered by the Commission."
This court is of the view that, while the method of procedure employed by the relatrix has been unusual, it has nevertheless had the practical result of a full and thorough consideration of her claim by the Industrial Commission. When her application for reconsideration was granted by the commission, her claim was reopened, reheard, reconsidered and again denied. Then, instead of promptly availing herself of further action, the relatrix permitted the matter to lie dormant for more than four years. Under these circumstances this court can do nothing but grant the respondent's motion and deny the writ. If the writ were allowed, it would have the effect of compelling a mere futile repetition of a process of which the relatrix has in fact had the full benefit on at least one occasion.
ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
BEVIS and ZIMMERMAN, JJ., not participating.