State ex rel. Weinberger v. Industrial Commissions

• Decision Date: 17 December 1941
• Docket Number: 28622.
• Citation: 139 Ohio St. 92,38 N.E.2d 399
• Parties: STATE ex rel. WEINBERGER v. INDUSTRIAL COMMISSION.
• Court: Ohio Supreme Court

38 N.E.2d 399

139 Ohio St. 92

STATE ex rel. WEINBERGER v. INDUSTRIAL COMMISSION.

No. 28622.

Supreme Court of Ohio

December 17, 1941

Syllabus by the Court.

1. Section 1465-94, General Code, providing that no agreement by an injured employee to waive his rights to compensation under the Workmen's Compensation Act shall be valid, applies only to an agreement made prior to the accrual of the claim or cause of action, or to an agreement of waiver or settlement consummated after such date wherein the consideration is merely nominal.

2. Under the Workmen's Compensation Act, disabilities accruing from an injury subsequent to the allowance or denial of an award of compensation for such injury may be considered and compensated by the Industrial Commission within the limitation of time fixed by statute, and a contract, to be effective as a complete settlement of a claim arising under the Workmen's Compensation Act, must expressly cover future as well as past and present disabilities arising out of the injury which is the basis of such claim.

This is an action in mandamus originating in the Court of Appeals of Franklin county to require the respondent, the Industrial Commission, to grant a rehearing on realtor's application for additional compensation beyond the date of the last payment therefore made under a claim for compensation for personal injuries.

Briefly stated, the petition alleges the following facts:

On January 6, 1936, relator, while employed by a drug company sustained injuries to his left leg. He filed a claim for compensation, being claim. No. 1388591, with the Industrial Commission, which claim was allowed and compensation paid. On January 15, 1937, relator filed an application for modification of the former claim and award, setting out that as a result of the original injury to his left leg, it became necessary on November 20, 1936, to amputate his right leg. The commission denied his application for modification both on original hearing and on rehearing.

Thereupon relator appealed to the Common Pleas Court of Cuyahoga county where he obtained a verdict and judgment, establishing his right to participate in the state insurance fund. An appeal was taken by the commission from this judgment to the Court of Appeals. During the pendency of that appeal, the relator proposed a compromise settlement to the commission. The commission thereupon granted the Attorney General authority to settle relator's claim under the pending appeal for the sum of $4,200, the relator at that time, under the law being entitled to receive upon successful appeal compensation and expenses in the total sum of $5,278.

Relator avers that thereupon, on the twenty-second day of May, 1939, the following agreement of settlement relating to his claim arising out of the application to modify the award for the loss of his [right] leg, filed January 15, 1937, was entered into and which provides as follows:

"May 31, 1939. The parties hereto agree that the appeal now pending in the Court of Appeals of Cuyahoga county is to be dismissed at the costs of the Industrial Commission of Ohio and that in full satisfaction of the judgment heretofore rendered by the Common Pleas Court and of all claims for compensation, expenses, and fees by reason of claim No. 1388591, the defendant will award the sum of $4,200 to be paid as follows: $3,800 to claimant and $400 to counsel for plaintiff.'

'(Signed) Milton Weinberger,

'R. D. Metzner,

'Counsel for Claimant,

'E. P. Felker,

'Assistant Attorney General.'

Thereafter the Industrial Commission issued warrants for payment according to the settlement and entered an order of record as follows: 'That claimant be awarded compensation pursuant to the agreement entered into by and between the claimant and Attorney General, to wit: Compensation in amount of $3,800 to claimant and $400 payable to counsel for claimant, Raymond D. Metzner, that said warrants are in full satisfaction of the judgment heretofore rendered by the Common Pleas Court in the appeal of this claimant of all claims for compensation and expenses and fees by reason of this claim, that warrants be issued forthwith to J. H. Davis for delivery.'

On or about January 19, 1940, within the period of 10 years as provided by law, the relator filed his application by law, the compensation beyond the date of last payment,' setting forth therein the loss by amputation of the other or left leg resulting from the original injury sustained on January 6, 1936, claiming the right to compensation for permanent total disability under the provisions of Section 1465-81, General Code.

The Industrial Commission denied relator further right to participate in the state fund upon a new and changed condition, and on February 14, 1940, dismissed his application. On April 18, 1940, it dismissed his application for rehearing seasonably filed, upon an order or finding that the commission no longer had jurisdiction in the claim by reason of suit settlement.

Relator prayed that a peremptory writ of mandamus be issued requiring the commission to grant a right to rehearing upon his application for further compensation.

The respondent filed a demurrer to relator's petition on the grounds that the petition shows on its face that the court did not have jurisdiction of the subject of the action, and that the petition did not state facts sufficient to show a cause of action. The court overruled the demurrer and granted final judgment to the relator upon the failure of respondent to plead further. Thereupon, respondent appealed as of right to this court on questions of law.

Thomas J. Herbert, Atty. Gen., and E. P. Felker and Thomas F. Joseph, Asst. Attys. Gen., for appellant.

Robert M. Draper, of Columbus, and Maurice Singer, of Cleveland, for appellee.

HART Judge.

The respondent claims the Court of Appeals erred in overruling its demurrer to the petition for the reason that, since the validity of the settlement contract raised a legal question, the commission had no jurisdiction to determine that issue and was, therefore, not required to grant a rehearing.

In the opinion of this court, the commission had jurisdiction to consider the contract and find that it was valid and broad enough to bar the claim until the contrary was determined. State ex rel. Forther v. Industrial Commission, 126 Ohio St. 554, 186 N.E. 396, and State ex rel. Fortner v. Industrial Commission, 127 Ohio St. 289, 188 N.E. 8. This question, however, becomes unimportant in view of the further holding in this case.

The respondent by its demurrer raised the question of the validity of the agreement of settlement entered into between the claimant and the commission on May 22, 1939. The respondent claims that the agreement bars a claim for all disabilities to the relator including such as appeared after the date of settlement as well as those which were known at that time. On the other hand, the relator claims that if the settlement included disabilities which resulted from the original injury but which had not developed and were not taken into consideration at the time of the compromise agreement for settlement, such agreement would be invalid and unenforceable because of Section 1465-94, General Code, the pertinent portion of which reads as follows: 'No agreement by an employe to waive his rights to compensation under this act shall be valid, except that an employe who is blind may waive the compensation that may become due him for injury or...