Sergi v. Industrial CommissionSergi v. Industrial Commission
Was tbe order of December 6, 1938, appealable?
This сase is governed by Section 1465-90, General Code, as in force prior to its amendment in 1937.
State, ex rel. Longano,
v.
Industrial Commission,
Section 35, Article II, of the Ohio Constitution, рrovides that laws may be passed establishing a board to collect, administer and distribute tbe state insurance fund, and to determinе all rights of claimants thereto. These laws may, therefore, accord finality to tbe deci
*548
sions of the Industrial Commission on questions of fact relating to the rights of claimants to participаte in such fund.
State, ex rel. Slaughter,
v.
Industrial Commission,
In conformity with the constitutional authorization, Section 1465-90, General Code (111 Ohio Laws, 227), gave the Industrial Commission full power and authority to hear and determine all questions within its jurisdiction, including the extent of disability and amount of compensation to be paid in each claim, with finality of decision in these matters. The section further stipulated that when the commission found it had no jurisdiction of a claim and thereby no authority to inquire into the extent of disability or the amount of compensation, and denied the right of the claimant to receive compensation or to continue to receive compensation for such reason, then the claimant might file an application for rehеaring of his claim before the commission. An appeal to the Court of Common Pleas was given the claimant if after the rehearing the commission adhered to the finding that it had no jurisdiction of the claim and no authority to inquire into the extent of disability or amount of compensation.
What happened in the instant case as disclosed by the petition? Plaintiff’s original claim was аllowed and he was paid compensation for more than three years; he was granted a rehearing on the order dеnying his application for modification of award, and his clаim allowed upon .such rehearing. He was then referred to thе medical department for the sole purpose of dеtermining the extent of disability. Dr. Stern, presumably a specialist, found аnd reported that the limitation of movement in plaintiff’s knee and hip joints of which he complained was due entirely to voluntаry restrictions. In other words, that he had no genuine disability. Upon such report the commission declined to order the payment of additional compensation.
*549 Under Section 1465-86, General Cоde, the commission has continuing jurisdiction of this matter and is empowered from time to time to modify or change its former findings. Counsel for the defendant assert without contradiction that plaintiff has duly filеd with the commission an application for rehearing on its оrder of December 6, 1938. It may be that plaintiff will yet be successful bеfore the commission, or failing in that secure an order from whiсh an appeal will lie.
Since the defendant based its finding and order of December 6, 1938, on the report of Dr. Stern, it would be manifestly unfair to take it before the Court of Common Pleas on a rеcord from which the doctor’s findings would be absent.
Being of opiniоn that the demurrer to the petition was properly sustained, thе judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.