State ex rel. Allied Wheel Products, Inc. v. Industrial Commission

• Decision Date: 19 December 1956
• Docket Number: No. 34835,34835
• Citation: 1 O.O.2d 190,166 Ohio St. 47,139 N.E.2d 41
• Parties: , 1 O.O.2d 190 The STATE ex rel. ALLIED WHEEL PRODUCTS, Inc., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
• Court: Ohio Supreme Court

Page 47

166 Ohio St. 47

139 N.E.2d 41, 1 O.O.2d 190

The STATE ex rel. ALLIED WHEEL PRODUCTS, Inc., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.

No. 34835.

Supreme Court of Ohio.

Dec. 19, 1956.

Cobourn, Yager, Notnagel, Smith & Beck, Toledo, for appellant.

C. William O'Neill, Atty. Gen., James L. Young, Columbus, and John R. Barrett, Akron, for appellee.

PER CURIAM.

The first error assigned by relator is that the respondent was guilty of an abuse of discretion in permitting an amendment of claimant's application after the expiration of more than two years from the date of injury.

Section 1465-72a, General Code, Section 4123.84, Revised Code, provides that claims for workmen's compensation shall be forever barred unless application therefor shall be made within two years from the date of injury or death. An award of additional compensation is not a modification of a previous award but is a new, separate and distinct award and is subject to the two-year period of limitation. State ex rel. Fruehauf Trailer Co. v. Coffinberry Industrial Commission, 154 Ohio St. 241, 95 N.E.2d 381; State ex rel. Carr v. Industrial Commission, 130 Ohio St. 185, 198 N.E. 480. After the expiration of the two-year period, a claimant can not for the first time assert as the basis for his claim the violation of a different specific safety requirement which had not theretofore been relied on. State ex rel. DeBoe v. Industrial Commission, 161 Ohio St. 67, 117 N.E.2d 925. Nor can a claimant rely upon a specific safety requirement which is directed toward the regulation of some industry other than that in which his employer was engaged at the time of the injury. State ex rel. Miller Plumbing Co. v. Industrial Commission, 149 Ohio St. 493, 79 N.E.2d 553.

In our opinion, the present case does not fall within the above-cited rules. The original application here was filed within the limited period and charged the violation of a particular specific safety requirement, viz., failure to enclose or guard a set or train of gears.

Save for one difference in the exception clause, which difference has no material significance in this case, page 15, section 7, chapter 2 of bulletin of Industrial Commission, state of Ohio, of specific safety requirements, cited by claimant in her original application, is identical in wording with section 7, Specific Requirements, General Safety Standards for Workshops and Factories.

This latter specific requirement was in effect at the time claimant sustained her injury, and presumably relator had knowledge of it. The requirement has continued to remain in effect in almost identical terms, although it has been republished in a new bulletin and given a new numerical designation.

We are of the opinion that the amendment permitted here in no way effected a substantive change in the original action which was timely instituted, and that permitting the claimant to substitute the applicable numerical designation for the particular safety requirement alleged to have been violated did not constitute an abuse of discretion by respondent.

We believe relator was not denied a hearing on this claim. The order of the respondent clearly shows that, following the December 22 hearing, the claim was 'held for decision,' with the parties being...