57 N.E.2d 75 | Ohio | 1944
The first question raised by the plaintiff is whether, in the trial on appeal of a workman's compensation claim wherein the claimant has already been awarded the full amounts fixed by statute for all disability short of permanent and total disability, it is proper to submit to the jury the question of permanency and totality of the claimant's disability.
Plaintiff claims that the sole question for the jury is whether the claimant is entitled to further participate in the fund, and that the extent of the disability is to be determined solely by the commission. In other words, the plaintiff claims that when the commission has denied jurisdiction, a favorable finding for the claimant on appeal simply restores to the commission its broad continuing jurisdiction, enabling it to order further compensation to be paid in the manner provided by the compensation law. *512
At this point, it should be noted that an amendment to Section 1465-90, General Code (117 Ohio Laws, 86), which now authorizes an appeal from the denial of a claim by the commission on the ground that the claimant "is not permanently and totally disabled as a result of the injury" applies only to those claims arising after July 3, 1937, the effective date of the amendment, and does not affect the instant case.
The Court of Appeals, two judges concurring, adopted the view of the plaintiff and held that all the plaintiff had to prove was that after the date of the last payment made to the claimant, he was still disabled as a result of the injury, leaving the extent of his disability to the sole determination of the Industrial Commission. This court concurs in this view, which is in harmony with its former holdings. Parletto v.Industrial Commission,
In the case of State, ex rel. Kauffman, v. IndustrialCommission, above cited, this court held:
"1. By virtue of Section 1465-90, General Code, in cases heard on appeal to a Common Pleas Court from the Industrial Commission, the jury may only find whether or not the claimant is entitled to participate in the workmen's compensation fund, and the court may only pronounce judgment whether the claimant is entitled to participate in the workmen's compensation fund and to be paid in the manner provided by the workmen's compensation law.
"2. A verdict and judgment so entered and certified to the Industrial Commission do not impose upon the Industrial Commission a duty to pay compensation to any particular future date or for any particular extent *513 of disability; it becomes the duty of the commission upon receiving such certificate to recognize the verdict and judgment as awarding some disability and to proceed to inquire the extent of such disability."
In the course of the opinion in that case the court said:
"In this case the writ can only be awarded if the judgment already referred to found that Kauffman was permanently and totally disabled. The judgment speaks for itself. It only finds that Kauffman is entitled to participate in the fund and to be paid in the manner provided by the workmen's compensation law. It is true that the petition in the Court of Common Pleas alleged that he was permanently and totally disabled, and the answer denied that allegation. Those allegations are not conclusive. The policy of the law is expressed in Section 1465-90, General Code, and states with particularity what may be heard by the Court of Common Pleas and what the verdict of the jury may award. It also provides with equal particularity as to what the judgment of the court may order. The verdict and the judgment in this case conform to the statute. By the verdict and judgment it becomes conclusive upon the commission that Kauffman was entitled to some compensation further than that which had already been awarded to him by the commission. The extent of the further disability and the extent of the further compensation could only be ascertained by the commission."
The plaintiff complains that the trial court erred in submitting to the jury, over his objection, the issue of total and permanent disability, but this was not prejudicial to him for the reason that he waived the error by the submission of interrogatories on that issue, which were answered by the jury. *514
The Court of Appeals also found that the trial court, in charging on the subject of total and permanent disability, erred prejudicially in defining the term "permanent" as applied to plaintiff's disability and reversed the judgment and remanded the case for a new trial for that reason.
The trial court charged to the effect that "permanent" as applied to disability "means that total disability need only be for an indefinite and indeterminate period and need not be of life long duration." The Court of Appeals held that this charge was "indefinite, and incomplete, in failing to include some instruction indicating that circumstances justifying a reasonable inference as to continuance for an extended period of time, attended with probabilities of lifetime duration, should have been included."
This court cannot say that the Court of Appeals erred in condemning the charge in the respects pointed out by it. The term "permanent" applied to disability as the subject matter of the statute is difficult to define. To meet the requirement of permanency as used in the statute it must appear that the disability will, with reasonable probability, continue for an indefinite period of time without any present indication of termination.
In the recent case of Stuhlbarg v. Metropolitan Life Ins.Co., ante, 390, this court in defining the term "permanent disability," as used in a disability insurance policy, held that it "does not mean that such disability must necessarily continue for the remainder of the life of the insured, but that it shall, with reasonable probability, continue for some indefinite period of time, without any present indication of recovery therefrom" *515
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL and WILLIAMS, JJ., concur.