State ex rel. Rubin v. Industrial Commission of Ohio

• Decision Date: 01 June 1938
• Docket Number: 26714.
• Citation: 134 Ohio St. 12,15 N.E.2d 541
• Parties: STATE ex rel. RUBIN v. INDUSTRIAL COMMISSION OF OHIO.
• Court: Ohio Supreme Court

15 N.E.2d 541

134 Ohio St. 12

STATE ex rel. RUBIN v. INDUSTRIAL COMMISSION OF OHIO.

No. 26714.

Supreme Court of Ohio

June 1, 1938

This action in mandamus was brought originally in this court and was submitted upon an agreed statement of facts.

Printz Biederman Company is a corporation engaged in the manufacture of women's garments with its principal place of business in the city of Cleveland, Ohio, and at all times has complied with the requirements of the Workmen's Compensation Act and has duly paid into the State Insurance Fund all required premiums.

The relator, Eli L. Rubin, has been employed by Printz Biederman Company for about fourteen years. His work consists in selling goods in the southwest portion of the United States and also in assisting with selling and office work in the place of business in Cleveland.

On August 9, 1934, relator, in the course of employment sustained an injury consisting of a left inguinal hernia; on April 28, 1935, entered a hospital and the next day was operated on for the hernia. Following the operation he was disabled from the performance of all labor for about six weeks. As a direct result of the injury, he suffered a temporary total disability from April 28, 1935, to June 10 1935.

Every two weeks during the year 1934, the relator received a salary check from the employer for $104, although he performed no labor and continued to receive pay at the same rate during the entire period of disability.

The agreed statement of facts also contains the following:

'The salary paid by his employer to the relator during the aforesaid period of disability was duly reported by the Printz Biederman Company to the Industrial Commission of Ohio in the payroll report thereafter filed by the employer with the Industrial Commission of Ohio, in accordance with the rules of the Industrial Commission.

'The salary which was paid to the relator during the period he was totally disabled was not paid by the employer nor received by the relator as advances upon any anticipated payments of compensation by the Industrial Commission. It was not expected by the employer that it would be reimbursed by the relator for such payments in the event compensation should subsequently be awarded and paid by the Industrial Commission. If compensation is hereafter awarded and paid to the relator by the commission, there has been and is no agreement on the part of the relator to pay any part of such compensation to his employer, and no part of it will be paid to the employer.'

An application for compensation was duly filed by the relator with the Industrial Commission of Ohio and the commission made the following order:

'Ordered that the claim be allowed on rehearing; that compensation and medical expenses be paid as approved.'

The commission made another finding on July 14, 1937, which reads: 'This claim being considered further on proof filed pursuant to the commission's order of June 29th, 1937, the commission being duly advised from proof of record, finds that claimant's wages were continued during his period of disability, therefore, no authority for payment of compensation over the period from April 28th, 1935, to June 10th, 1935.'

All medical, surgical and hospital expenses have been paid, but the commission has refused to pay compensation for the...