May v. Industrial Commission , 50 Ohio App. 286 ( 1934 )

The facts as stated in the pleadings and in the bill of exceptions are that on December 18, 1920, William May was an employee of The Edward Ford Plate Glass Company, which company was then a contributor to the State Insurance Fund, its employees being entitled to the benefit of the Workmen's Compensation Act; that on said date May received injuries to his left hand, in the course of his employment; that application was made by him for compensation therefor, which was allowed; that thereafter on July 11, 1930, May applied to the commission for a modification of the award theretofore made. The application for modification was not supported by any additional evidence as to his alleged disability, and on the hearing had thereon on September 11, 1930, the following order was entered by the commission:

"It appears that the claimant has been paid compensation for partial disability in an amount equal to the total loss of the left hand, having been paid $114.86 to June 30, 1926, and $214.86 as represented by Warrant No. 9039, dated May 26, 1927, which bears the endorsement of the claimant and has been cashed; also a further amount in the sum of $1324.28, which the claimant admitted receiving while present before the Commission September 9, 1930, the admission being made in the presence of the Commission and Mr. W.A. Harman, representing the employer. The above amounts were paid for partial disability in addition to the sum of $152.14, which was made for temporary total disability. Claim No. 959336 should be considered with this claim. The attached warrant to be returned to Mr. Nott. That the claimant's application for modification of award be dismissed."

May was duly notified of this order, and did not appeal therefrom, and it is now too late to do so.

On April 10, 1933, May again filed an application for modification of the award, together with a medical report of Dr. Henry L. Price, and an affidavit in support thereof. The last above mentioned application for modification of the award was considered by the commission on April 27, 1933, on which date it made the following order:

"That the application for modification of award filed April 10, 1933, be dismissed."

May was duly notified thereof and within thirty days thereafter filed his notice of appeal, and on June 24, 1933, filed his petition thereon in the Court of Common Pleas. The Industrial Commission filed an answer to this petition and on April 12, 1934, filed a motion requesting the court to dismiss the petition of the plaintiff May on the ground that the court had no jurisdiction of the subject matter of the action. This motion was granted by the Court of Common Pleas and judgment rendered accordingly. May wants this judgment reversed.

Our conclusion is that the order of September 11, 1930, was a final order, and no appeal having been taken therefrom none could be taken from the subsequent order of April 27, 1933, which involved and related to the identical request for modification of the award made by the application of July 11, 1930.

As we construe the order of September 11, 1930, it is not a denial of jurisdiction, but, on the contrary, affirmatively shows that the commission assumed jurisdiction and dismissed the application of May because in its judgment he was not entitled to further compensation, and if we were to assume that it was not such a final order as would preclude the filing of the application of April 10, 1933, then there could be no appeal from the order made on April 27, 1933, if that were considered such an order as might be appealed from because no application was made for a rehearing thereon as the law provides.

We have not before us the applications for modification of award made to the commission, but since in the petition as well as in the bill of exceptions it is stated as to the application merely that "May filed an ``application for modification of award'" this court must assume that each of them was "just what it was labelled," and "that it was so considered and treated by all parties is also apparent."

In our judgment it does not appear that the commission's denial was based upon a finding that it had no jurisdiction of the claim of May to further compensation and no authority to inquire into the extent of his disability or the amount of compensation, and since there is no presumption that a finding of the commission denying the right to continue to receive compensation is based upon jurisdictional grounds, the judgment of the Court of Common Pleas is affirmed. State, ex rel.Depalo, v. Industrial Commission, 128 Ohio St. 410,191 N.E. 691.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.