187 N.E.2d 155 | Ohio Ct. App. | 1962
This is an appeal on questions of law from a judgment dismissing plaintiff's third amended petition after a demurrer thereto was sustained.
In her third amended petition plaintiff, appellant herein, alleges in substance that her employer was a self-insurer; that on March 28, 1955, she sustained injuries in the course of her employment as a direct and proximate result of which she suffered injuries to her forehead, left knee, left radius and back; that on April 20, 1955, a form C-50 was filed on her behalf with the commission, reciting that her injuries were to the left arm and elbow, to the left eyebrow area, and to the left knee (with no mention of her back); that her employer rendered treatment to plaintiff for the aforesaid injuries and also for injuries to *138 her back; and that she was paid compensation for such specified injuries and for injuries to her back, all arising out of her employment.
Determination of the question presented upon this appeal requires analysis of the provisions of the Code applicable to her claim. Prior to its amendment in 1941, Section 1465-72a, General Code (108 Ohio Laws, 319 [1919]), provided:
"In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after injury or death, application shall have been made to the Industrial Commission of Ohio or to the employer in the event such employer has elected to pay compensation direct."
Thus, the provisions of the two-year statute of limitation were clear until its amendment in 1941 (119 Ohio Laws 569), which then provided, in part, as follows:
"In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, written application shall have been made to the Industrial Commission of Ohio or, in the event * * * the employer has elected to pay compensation direct * * * written notice ofinjury shall have been given to the Industrial Commission orcompensation shall have been paid under Sections 1465-79,1465-80, 1465-81 within two years after the injury or writtennotice of death shall have been given to the IndustrialCommission or benefits shall have been paid under Section1465-82 within two years after the death. * * *" (Italics and asterisks are as they appear in 119 Ohio Laws, 569).
The last paragraph of this section required the commission to provide printed notices quoting in full the preceding paragraph and also required self-insuring employers to post one or more of such notices in conspicuous places in the workshops or places of employment.
The 1941 amendment of Section 1465-72a, General Code, was carried into Section
"In all cases of injury or death, claims for compensation shall be forever barred unless, within two years after the injury or death, written application has been made to the Industrial Commission or, in the event the employer has elected to pay compensation direct, written notice of injury has been given to *139
the commission or compensation has been paid under Sections
Pursuant to the provisions of Section
"In all cases of injury or death, claims for compensation or benefits shall be forever barred unless, within two years after the injury or death, (1) written application has been made to the Industrial Commission or, (2) in the event the employer has elected to pay compensation or benefits directly (a), written notice of injury has been given to the commission or (b) compensation or benefits have been paid or furnished under Sections
In our opinion the only substantial changes made by the 1959 amendment are (1) addition of the words, "or benefits," to the word, "compensation"; (2) the striking out of specified sections of the chapter and inserting in lieu thereof all the sections of the chapter, except the penalty section; and (3) the deletion of the words, "within two years after the injury" and "within two years after the death," where they appeared in the former section. We do not regard the insertion of figures and letters to indicate subcategories as of particular importance. In construing the section prior to its amendment in 1959, it may be logically paraphrased as follows:
In all cases of injury or death, claims for compensation shall be forever barred unless, within two years after the injury or death, (1) written application has been made to the Industrial Commission or (2), in the event the employer has elected to pay compensation direct, (a) written notice of injury has *140
been given to the commission or (b) compensation has been paid under Sections
It is to be observed that under the preliminary clause of the above section claims for compensation shall be forever barred unless, within two years after injury or death, written application has been made to the commission. Then in the alternative it is provided that in the event the employer has elected to pay compensation direct, written notice of injury has been given to the commission or compensation has been paid under Sections
Since plaintiff alleges that she was paid compensation by her employer within two years after her injury, regardless of whether such compensation was paid for disabilities specified in the form C-50 or in addition for disability to her back, her claim is not barred as a matter of law. In our opinion, the filing of form C-50 is also the equivalent of notice to the commission, which is more or less immaterial since notice and payment are also in the alternative and either condition would relieve her from the bar of the preceding limitation.
In this respect the decision in Miller v. Spicer Mfg. Co.
(1953),
We have re-examined the record in the Spicer case and find that the petition alleged, inter alia, as follows:
That on the 28th of July 1942, while in the usual course of his employment, plaintiff was struck by a truck, pinned between the truck and a bench and rendered unconscious; that he sustained injuries to his back; that he filed with his employer and *141
the commission his claim for compensation, which was allowed and compensation granted for total disability from date of injury to August 30, 1942; and that plaintiff filed with the commission his application for compensation beyond the date of last payment and for modification of award (presumably under the provisions of Section 1465-86, General Code [Section
The commission found that the proof on rehearing failed to show that any disability which the claimant had in his back was the result of the injury to his knees and the fracture of the right fibula sustained on July 28, 1942, and that the commission was without jurisdiction to consider any injury to claimant's back for the reason the record failed to show that the claimant ever made any application to the commission or to his employer for compensation based upon an injury to his back, within two years after July 28, 1942.
Miller failed to allege that compensation was paid by his employer for injury to his back within two years after his injury. For aught the record before the commission as well as the court showed, he failed to prove that the injury to his back was attributable to the accident in which he incurred injury to his knees and fracture of his right fibula.
The background prior to the decision in Miller v. Spicer is of at least cursory interest.
In State, ex rel. Bernhardt, v. Industrial Commission (1934),
In Ferguson v. Industrial Commission (1941),
In the Kaiser case, the court held that an application for compensation for the results of the freezing of the right foot under circumstances that made freezing an injury in the course of employment was sufficient to entitle the claimant to recover for disability resulting from the freezing of the left foot at the same time, even though the disability to the left foot did not manifest itself until more than two years after the accident. In reaching its conclusion the court referred to Section 1465-86, General Code (Section
The brief per curiam opinion in Miller v. Spicer is as follows:
"It is apparent from the order of the Industrial Commission, quoted in plaintiff's petition, that the claim plaintiff is now presenting is for a new and distinct injury, for which no application for compensation was made within the two-year period prescribed by Section 1465-72a, General Code.
"The trial court was correct in sustaining the demurrer and rendering judgment for defendants. The reversal of that judgment by the Court of Appeals was error. State, ex rel. Bernhardt, v.Industrial Commission,
"The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed."
In its opinion, the court made no reference to State, ex rel.S. S. Kresge Co., v. Industrial Commission,
"Within the period provided by this statute the Industrial Commission may exercise this authority for the purpose of correcting an error discovered in a case in which it has assumed jurisdiction."
But the second paragraph of the syllabus in the Kresge case states:
"Within the statutory ten-year period the commission may exercise this authority for the purpose of considering new evidence of further disability resulting from the claimant's injury."
See, also, former Section
Although the Bernhardt case was followed and the Kaiser case was overruled in the Spicer case, the failure to refer to or overrule the second paragraph of the syllabus in the Kresge case leads to the conclusion that Miller was denied compensation on the ground that his claim was for a new and distinct injury separate and apart from his original injury for which he had been compensated, and that the court did not overrule its holding in the Kresge case that within the statutory ten-year period the commission may exercise jurisdiction for the purpose of considering new evidence of further disability resulting from the claimant's original injury. *144
The predominant ideal in the enactment of the Workmen's Compensation Act was to substitute for adversary actions at law to determine the rights of disabled workmen, proceedings before an administrative tribunal, which proceedings should be informal simply to determine facts and administer justice, free of adverse partisanship. In pursuance of that ideal, the statute has always provided that neither the administrator nor the commission shall be bound by common-law or statutory rules of evidence or by any technical or formal rules of procedure except as provided in the act. Sections
Generally speaking, claims for compensation are filed with the commission by the employee on forms provided by the commission. Usually they are prepared with the assistance of the employer. Claims against a self-insuring employer may be filed directly with the employer. Many self-insurers have adopted the practice of paying compensation without the necessity of filing a written claim with the commission. In case of dispute, a written application to the commission is required.
In the usual case when the initial claim is prepared, the *145 claimant does not have the advice and assistance of his own counsel. If Miller v. Spicer is to be construed in accordance with the contention of the employer herein, the plaintiff, in order to fully protect herself, should have made her initial claim as broad as possible to cover every conceivable injury which might result from her accident. Otherwise, she would be barred from further compensation for a disability she did not discover or which did not arise within two years after her accident. As indicated above, we do not believe that the court in Miller v. Spicer intended such unjust result.
The judgment of the Common Pleas Court is reversed, and the cause is remanded thereto for further proceedings according to law.
Judgment reversed and cause remanded.
SMITH and DEEDS, JJ., concur.