Ferguson v. Industrial Commission

Decision Date29 October 1941
Docket Number28572.
Citation37 N.E.2d 194,138 Ohio St. 529
PartiesFERGUSON v. INDUSTRIAL COMMISSION.
CourtOhio Supreme Court

Syllabus by the Court.

Under Section 1465-72a, General Code, an original application for workmen's compensation alleging strain and overexertion as the cause of injury may not be amended more than two years after the death of the workman to include or substitute a claim of injury resulting from strain, overexertion and blow on the head occurring at a time different from that alleged in the original application. (Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449 distinguished; State ex rel. Bernhardt v. Industrial Commission, 127 Ohio St. 582, 190 N.E. 224, followed in principle.) Appeal from Court of Appeals, Mahoning County.

On April 8, 1937, plaintiff below made application for payment of money out of the state insurance fund for compensation on account of the death of John F. Ferguson, alleging that Ferguson, while in the course of his employment, was subjected to strain or overexertion causing his death on May 21, 1935. On June 25, 1937, plaintiff's claim and application came on for hearing, and on consideration of the same the Industrial Commission made the following finding 'That death claim be disallowed for the reason that decedent's death was not the result of an injury sustained in the course of and arising out of employment.'

Plaintiff's application for rehearing was granted and a referee appointed to take testimony.

On January 4, 1938, an amended application was filed with the commission, in which plaintiff alleged that on May 21, 1935, decedent died of cerebral hemorrhage caused by strain, overexertion and blow on the head about May 17, 1935.

On March 13, 1938, the commission made the following order: 'That the application to amend be dismissed. Claim be referred to the rehearing section to again schedule claim for the taking of testimony in pursuance to the commission's order * * *.'

At the rehearing, plaintiff again attempted to amend, and offered a copy of her amended application as an exhibit.

The cause was appealed to the Common Pleas Court, which permitted the amendment and received the evidence respecting an injury caused by a blow on the head.

The jury found in favor of the plaintiff, a motion for a new trial was overruled and the cause was appealed to the Court of Appeals which affirmed the judgment of the court below.

This cause comes into this court from the Court of Appeals of Mahoning county (judges of the Fifth Appellate District sitting by designation) following the allowance of a motion to certify the record.

Thomas J. Herbert, Atty. Gen., E. P. Felker, of Akron, and Robert E. Hall, of Columbus, for appellant.

Charles S. Miller, or Columbus, and Herbert L. Kerr, of Youngstown, for appellee.

TURNER, Judge.

At the time here applicable, Section 1465-72a, General Code, 108 Ohio Laws, pt. 1, 319, provided 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, 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.'

The decision of this case depends upon whether the amended application of January 4, 1938, more than two years after the workman's death, set up a different accident and injury from the accident and injury set up in the original application.

The court below in its opinion said: 'Except for the conclusion of the majority of the Supreme Court in the case of Kaiser v. Industrial Commission, 136 Ohio St. 440 , this court would reverse the judgment of the trial court in the instant case and render final judgment for the appellant.' In the Kaiser case, this court held that an original application might be amended more than two years after the original injury to set up a subsequent disability arising from the original accident. In the instant case it was sought, not to set up a subsequent disability arising from the original accident, but to set up an accident not described in the original application by an amendment filed more than two years after the death of the workman.

The foregoing facts bring the instant case within the principle followed by this court in the case of State ex rel. Bernhardt

v. Industrial Commission, 127 Ohio St. 582, 190 N.E. 224 .

The only evidence offered by plaintiff below in the trial court on the issue of accidental injury was of the injury referred to in the attempted amendment filed more than two years after the workman's death. While not controlling, it is worthy of note that the attending physician testified that in making his diagnosis of the condition of the workman on May 21, 1935, he examined for but found no marks indicating trauma.

We are of the opinion that while the result of the injury here in question is the same as that described in the original application, the attempted amendment describes a different accidental cause for the result.

The judgment of the Court of Appeals should be reversed and final judgment entered for appellant.

Judgment reversed and final judgment for appellant.

WEYGANDT, C. J., and MATTHIAS, HART and ZIMMERMAN, JJ., concur.

WILLIAMS J., dissents.

BETTMAN, Judge. (dissenting). I respectfully dissent from the majority, and believe that the Court of Common Pleas was correct in permitting the amendment, and that the judgment of the Court of Appeals in affirming the Common Pleas should be affirmed.

I disagree with the view that the case of State ex rel. Bernhardt v. Industrial Commission, 127 Ohio St. 582, 190 N.E. 224, controls here. The factual situation in that case was different. There the claimant, having received compensation for an injury to his spine resulting from a fall from a ladder, sought, more than two years after the fall, to modify the award to get additional compensation for a second injury--a brain injury--claimed to have resulted from the same fall. It was held that this claim for the brain injury was barred by Section 1465-72a, General Code. But in the case at bar there are not claims for two injuries; there is a single claim--for death. Plaintiff by her amendment seeks only to correct the description of the circumstances causing the death. It results from this difference in facts that the Bernhardt case, supra, is not controlling. And since I agree that Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449, is also distinguishable for the reasons stated in the opinion of the majority, I believe that we are free to base decision here upon governing statutes and fundamental principles.

The pertinent controlling facts with respect to the question of claimant's right of amendment are briefly these: Claimant, a widow, was seeking to recover for the death of her husband, and filed application therefor with the Industrial Commission. On her original application entitled 'First Notice of Death and Preliminary Application,' dated April 8, 1937, question three, 'Date of accident,' was answered 'May 21, 1935.' The blank after question five asking 'How did the accident happen,' was filled in 'Strain or overexertion causing cerebral hemorrhage.' Thereafter, on January 4, 1938, more than two years from the death, plaintiff filed an amended application changing the answer to question three to 'about May 17, 1935,' and the answer to question five to 'Strain, overexertion and blow on the head, causing cerebral hemorrhage.'

The Industrial Commission ordered that the application to amend be dismissed. The claim in its unamended form was then disallowed by the commission on rehearing, and this ruling was appealed to the Court of Common Pleas. There the amended application was received as an exhibit, and a motion to suppress evidence taken before the referee with respect to the amended claim was overruled. The trial court gave the following reason for its ruling:

'In the opinion of the court the Bernard case in 127 Ohio St. 190 N.E. [i. e., ...

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