Opinion
No. 33325
Decided June 3, 1953.
Workmen's compensation — Continuing powers and jurisdiction of commission — Section 1465-86, General Code — Application for adjustment of claim — Limitation of action — Mandamus — Jurisdictional question determined by commission, not disturbed, when.
IN MANDAMUS.
The relatrix, Lucille Cestone, received an injury in the course of her employment on August 12, 1938. She was paid workmen's compensation therefor on a temporary total basis until August 4, 1940. On May 12, 1951, she filed with the Industrial Commission an application for adjustment of claim, alleging total disability. After investigation, the commission found that the application was not filed within ten years after the date of the last payment of compensation and that the commission, therefore, was without jurisdiction, and denied the application. A motion, requesting a further consideration of the claim in order to have a hearing on the question of whether medical treatment had been received by relatrix within ten years of the filing of her application for adjustment of the claim, was dismissed.
Thereafter, this action in mandamus was instituted in this court against the Industrial Commission and relatrix's former employer, a self-insurer. In her petition relatrix alleges, inter alia, that her employer had purchased an infrared lamp for her, and that its physician had treated her within the ten-year period provided by Section 1465-86, General Code; that such treatment amounted to the payment of compensation; that the act of the commission in dismissing the application for adjustment of claim constituted an abuse of discretion; and that the refusal to order further compensation paid to relatrix was in violation of the obligations and duties of the commission. The prayer is for a writ of mandamus requiring respondents to show cause why they should not required to award and pay to relatrix additional compensation under and by virtue of Section 1465-86, General Code.
The Industrial Commission in its answer admits that temporary total compensation was paid relatrix to August 4, 1940, and alleges "that no further action was taken with reference to the claim until an application for adjustment was filed on May 12, 1951."
The respondent employer, in its answer, alleges by way of defense that its records with reference to relatrix "do not disclose any treatment whatsoever after the year 1940," but do disclose that it purchased an infrared lamp and caused it to be delivered to relatrix for her use "sometime prior to April, 1940."
Messrs. Traxler Beil, for relatrix.
Mr. C. William O'Neill, attorney general, and Mr. Chalmers P. Wylie, for respondent Industrial Commission.
Messrs. Manchester, Bennett, Powers Ullman, for respondent Youngstown Sheet Tube Company.
It is undisputed that the last payment of compensation under the award was made on August 4, 1940, more than ten years prior to May 12, 1951, the date of the application for adjustment of claim. There is, however, a disagreement as to the facts and a definite conflict in the evidence as to whether the infrared lamp was furnished and the last treatment at the employer's dispensary was given within ten years prior to the application for adjustment of claim.
The Industrial Commission, upon the conflicting evidence before it, determined the jurisdictional question in favor of the employer. The record is not such as to justify this court, in a mandamus proceeding, to disturb that finding. State, ex rel. Wilms, v. Blake et al., Industrial Commission, 144 Ohio St. 619, 60 N.E.2d 308; State, ex rel. Bevis, v. Coffinberry et al., Industrial Commission, 151 Ohio St. 293, 85 N.E.2d 519, certiorari denied, 338 U.S. 826, 94 L. Ed., 502, 70 S. Ct., 74; State, ex rel. Brewer, v. Industrial Commission, 153 Ohio St. 471, 92 N.E.2d 385.
This court, without passing on the question presented by relatrix whether the rendering of treatment by a physician employed by a self-insuring employer or the furnishing of the infrared lamp tolls the running of the ten-year statute of limitation, denies the writ of mandamus.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.