Opinion
No. 22568
Decided December 17, 1930.
Workmen's compensation — Error proceedings do not lie to Supreme Court — Section 871-38, General Code, inapplicable — Only orders under safety code reviewable thereby.
Section 871-38, General Code, relates to the right of review given persons aggrieved by an order of the Industrial Commission of Ohio in reference to acts done and orders made under Sections 871-1 to 871-45, General Code, known as the "Safety Code," and may not be invoked for the purpose of reviewing an award made by the Commission under the workmen's compensation act. ( Gatton v. Industrial Commission, 93 Ohio St. 203, 112 N.E. 503; Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St. 185, 140 N.E. 684, and Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, approved and followed.)
ERROR to the Industrial Commission.
ON MOTION to dismiss.
Louis Bowes, plaintiff in error, was injured on December 18, 1928, while in the employ of the M. Sullivan Dredging Company, sub-contractor under a contract with the general contractor, the Newton-Baxter Company. While so employed, he was injured by a tractor operated by an employee of the Newton-Baxter Company, the general contractor, which backed into him, breaking his leg.
Bowes made claim for compensation to the Industrial Commission of Ohio against the Sullivan Dredging Company, subcontractor of the Newton-Baxter Company, claim No. 1168238, assuming that his employer, the Sullivan Dredging Company, was a participant in the state insurance fund and in good standing at the time. The Newton-Baxter Company was also mentioned in such application, but it is not clear just what Bowes claimed as to that company.
On learning that the Sullivan Dredging Company was not a participant in the fund, Bowes sought to invoke the benefit of Section 27 of the Workmen's Compensation Act, Section 1465-74, General Code, to have the commission determine the amount of compensation due him from his nonparticipating employer, claim No. 3323-27. While his claim was pending, the Newton-Baxter Company went into the hands of a receiver in the United States District Court at Toledo, and Bowes entered suit against the receiver on a claim for negligence. This case was settled for $1,500, which was paid to Bowes.
The Sullivan Dredging Company made a nominal payment to Bowes voluntarily in the sum of four hundred and some odd dollars, with the understanding that such amount, together with hospital and medical bills paid by it, should be credited in its favor on any amount later found due the plaintiff as compensation.
The Sullivan Dredging Company having been reinstated as a participating employer to the state insurance fund, Bowes' claim proceeded against the state fund as an employee of the Sullivan Dredging Company. On August 4, 1930, the following order was made by the Industrial Commission:
"Whereas, it appears that at the time of the alleged injury in this case, the employer did not have coverage on the date of injury, but shortly thereafter through its counsel, Messrs. Doyle Lewis, communicated with the department with a view of making arrangements so that the claimant should receive compensation, due to the fact that the department did not discover the actual situation and make necessary arrangements to see that proper steps were taken to provide coverage and arrange for the compensation, and,
"Whereas, it now appears that the employer has submitted payrolls over the period in which the injury occurred and has paid the required premiums thereon; and,
"Whereas, it was somewhat uncertain at the time claimant first made application to this department in Claim No. 1168238, whether he intended to file a claim against his immediate employer, M. Sullivan Dredging Company, or the principal contractor, Newton Baxter Company; and,
"Whereas, it appears that the employer, M. Sullivan Dredging Company, has made certain disbursements for medical services and compensation to the claimant;
"It is therefore Ordered that this case be joined with claim No. 1168238 and considered under said number as a regular state case, credit to be taken for any compensation awarded or the amounts paid by the employer as indicated by receipts and communications in either or both of the said claims.
"It further appears that the claimant received from the receiver of the Newton Baxter Company the sum of $1500 and as the claimant originally displayed some intention to file his claim against this employer, further credit should be taken on any compensation to be paid for which $1500.00 was received by the claimant."
It is to the allowing of the credit of $1,500 received from the Newton-Baxter Company that the plaintiff in error, Bowes, objects; and he asks this court to review the order of the Industrial Commission and exclude the said sum of $1,500 from its further consideration and to find and determine the amount of compensation due Bowes without deducting therefrom or taking credit for any and all the amounts paid by the receiver of the Newton-Baxter Company.
Messrs. Deeds Cole and Mr. Ralph Zeigin, for plaintiff in error.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for defendant in error.
The plaintiff in error, Bowes, seeks to have this finding of the Industrial Commission reviewed by virtue of the provisions of Section 871-38, General Code, which provides, in substance, that any employer or other person in interest being dissatisfied with any order of the commission may commence an action in the Supreme Court of Ohio to set aside, vacate, or amend the same, on the ground that the order is unreasonable or unlawful. This provision of the General Code is found in what is known as the "Safety Code," Sections 871-1 to 871-45, inclusive, and relates to the right given any person aggrieved by an order of the commission in reference to acts done and orders made under the sections above noted, to wit, 871-1 to 871-45, known as the "Safety Code." It does not authorize an employee to invoke the jurisdiction of this court for the purpose of reviewing an award or order made by the Industrial Commission under the Workmen's Compensation Act. This view is sustained in Gatton v. Industrial Commission, 93 Ohio St. 203, 112 N.E. 503; Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St. 185, 140 N.E. 684, and Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484.
This being the sole question involved, to wit, the right of plaintiff in error to prosecute this case under the provisions of Section 871-38, General Code, and such privilege not being granted the plaintiff in error by law it follows that the motion to dismiss the petition in error must be sustained.
Motion sustained.
KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.
MARSHALL, C.J., dissents.