247 N.E.2d 311 | Ohio Ct. App. | 1969
James L. Payne, a claimant before the Bureau of Workmen's Compensation, filed a petition in the Court of Common Pleas of Franklin County, by way of appeal from an order of the Industrial Commission, dated April 12, 1967. The prayer of the petition was for the right to participate in the State Insurance Fund. Issues were drawn by the petition and answer, containing some admissions and a general denial. A jury was impanelled, trial had, and at the close of the evidence the court *67 sustained a motion for a directed verdict favorable to defendants. The judgment, from which this appeal is taken on questions of "law and fact," was filed May 28, 1968. This appeal is properly one on questions of law and will be so treated.
The focal point of plaintiff-appellant's appeal is the holding of the trial court that the plaintiff-claimant had not within two years after October 5, 1959, made a written notice to the Industrial Commission, or the bureau, that indicated injury to a specific part of his body as required by Section
The complete file covering Claim No. 2211522 was not before the Common Pleas Court, nor is it before this court, but pleadings and transcript of evidence supply some chronological high spots necessary to this review:
October 5, 1959 — Claimant, taxi driver, injured in an automobile accident.
November 23, 1959 — Claim for compensation for the injuries suffered filed with the bureau (No. 2211522), which claim was allowed and is presently open.
March 21, 1963 — Claimant filed a C-92 for determination of permanent partial disability "and modification of award."
April 12, 1967 — Industrial Commission decision filed, following other necessary procedural steps, denying the C-92 application and holding that the disability recited therein did not result from the injury (10-5-59) for which existing claim was allowed.
Section
"(A) In all cases of injury or death, claims for compensation *68 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 the bureau of workmen's compensation, or
"* * *."
Subsection (A), as amended December 11, 1967 (132 Ohio Laws 1432), reads as follows:
"(A) In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death:
"(1) Written notice of the specific part or parts of the body claimed to have been injured has been made to the industrial commission or the bureau of workmen's compensation, or
"* * *."
James L. Payne filed his petition, as on appeal, in the Common Pleas Court on May 11, 1967. It was, therefore, pending before the court on December 11, 1967, the day upon which the amendment to Section
The argument of counsel for the appellant, Payne, reduced to its simplest terms, is that Section
The well-established basic rule as to the operation of Section
The Common Pleas Court did not determine the validity of the decision of the commission that the disabilities claimed by appellant, Payne, did not result from the original injury upon which his original claim, filed November 23, 1959, was predicated. The application for modification, filed March 23, 1963, made such a claim, asserting a subsequently developing disability directly caused by the injury sustained in the original accident but not described in the claim as originally filed. Claimant's application for modification, filed March 23, 1963, was a pending application at the time the amendment to Section
This is a case in which the commission has authority to consider new evidence of further disability resulting from the claimant's original injury within the statutory period of ten years as provided in Section
The general rule, as noted in the foregoing paragraph, is clear, and the authority of the commission was reasonably well defined until situations arose which called attention to conflicts between Section
In addition to the single question of the possible retroactive character of amended Section
"Any claim pending before the administrator of the bureau of workmen's compensation, a board of review, the industrial commission, or a court on the effective date of this act in which the remedy is affected by Section
The filing of the application for modification in the instant case is a step in the proceeding which began with the filing of the original claim for benefits. (Paragraph two of the syllabus of State, ex rel. Thompson, v. Industrial Commission [1941],
The commission has authority to modify an award. The amendment to Section
As counsel for the defendants, the Attorney General devotes a substantial part of his brief to a review of evidence appearing in the transcript bearing upon the validity of the claim set out in claimant's application for modification. The Common Pleas Court sustained the defendants' motion solely upon the ground that the amended statute was applicable. If weight of the evidence had anything to do with the result reached, it is not so indicated by the court.
Defendants, appellees herein, quote and rely upon several cited cases to refute appellant's basic contention. They are noticed particularly. Smith v. N. Y. Central Rd., supra, andShira v. B. F. Goodrich Co. (1952), 67 Ohio Law. Abs. 548, recognize the distinction between the "remedial" and "substantive." Smith involves a statute of limitations on negligence actions. The court held such a statute as remedial because it applied to "causes" within its terms upon which actions had not been commenced before its effective date.Shira follows the same reasoning as in Smith and similarly holds that a claim filed after an amendment must follow the procedure required. At page 551, the court takes the trouble to distinguish a "pending action" from a "cause of action."
Three other cases upon which the Attorney General relies areFrank v. Youngstown Sheet Tube Co. (1956), *72
83 Ohio Law. Abs. 419; Lotti v. Ternstedt Division, General MotorsCorp. (1961),
Stoich provides the distinguishing factor as between those cases and the instant case. It holds that the right to compensation is "substantial" and procedures for enforcement "remedial." At page 113, the court speaks as follows:
"* * * The rights to compensation generally to death benefits and certain specified amounts of compensation are substantive rights but the remedial procedures are not substantive rights."
In the instant case, the right to compensation which is at stake is substantive.
The amendments to Sections
The judgment of the Common Pleas Court is reversed and the cause remanded for determination of the validity of the order appealed thereto.
Judgment reversed.
DUFFY, P. J., and GUERNSEY, J., concur.
GUERNSEY, J., of the Third Appellate District, sitting by designation in the Tenth Appellate District. *73