Opinion
No. 21903
Decided October 23, 1929.
Workmen's compensation — Awards for injuries and for violating specific requirement, separate but interdependent — Industrial Commission may modify or change either, when — Section 1465-86, General Code.
While an award made under the Industrial Commission Act for an injury to an employee and an additional award made for violation of a specific requirement causing such injury, are separate and distinct awards, yet, growing out of the same probative facts and affecting the same parties, they are to be regarded as so interdependent that the Commission, under the discretion given it by Section 1465-86, General Code, may make such modifications or changes with reference to either of said awards as in its opinion are justified.
IN MANDAMUS.
This is an original action in this court, in mandamus, wherein the relatrix seeks to compel the Industrial Commission to continue certain payments claimed to be due her, without any deduction for an alleged overpayment. The facts incident to the matter, and out of which the controversy arises, are as follows:
The relatrix, Bertha Hollo, is the widow of John Hollo, who was, on January 6, 1926, an employee of the Cleveland Window Cleaning Company of Cleveland, Ohio, and who, on said date, was killed in an accident. On February 26, 1926, the Commission awarded compensation to Bertha Hollo, as the widow, and her four minor children, in the maximum death award, to wit, $6,500, payable in biweekly installments, which payments were made regularly by the Commission, until interrupted by the acts of the Commission of which relatrix complains.
After the above allowance had been made, it appears that the widow filed a claim with the Commission for an additional award, alleging that the death of her husband, John Hollo, was due to the violation by his employer of a specific requirement, and, after taking testimony and consideration thereof, the Commission on March 15, 1929, found that the decedent's death was the result of the violation of specific requirements and granted an additional award in the amount of $5.62 1/2 per week, beginning on January 11, 1926, totaling in the sum of $1,950, being for 346 weeks.
Thereafter the employer, the Cleveland Window Cleaning Company, filed an application for reconsideration, questioning the lawfulness and reasonableness of the order of the Commission granting such penalty, and asking for credit to the employer pro tanto in respect to the sum recovered from the employer; and on June 8, 1929, the application for reconsideration was denied by the Commission. Subsequently, to wit, on June 11, 1929, the Commission issued to the relatrix its warrant for $1,012.50, being at the rate of $5.62 1/2 per week, beginning January 11, 1926, and continuing to June 23, 1929, as the accrued compensation on the additional award made March 15, 1929, reconsideration of which had been denied on June 8, 1929, and delivered the warrant to the relatrix in payment of the accrued compensation on said additional award. It was so received by relatrix and the money collected thereon.
It appears from the petition that thereafter, to wit, on June 29, 1929, the Commission, without notice to her or her attorneys, set aside and vacated its former order as to the additional award, by the following entry:
"This cause coming on for hearing on the employer's petition for hearing upon the reasonableness and lawfulness of the order of the Commission in question, granting an award for the violation of a specific requirement and for further consideration of the employer's application for reconsideration of the Commission's order granting an additional award for the violation of a specific requirement, the Commission, upon further investigation and consideration, finds that at the time of the alleged injury the claimant was engaged solely in cleaning windows and was in no wise connected with any building or construction work on the building in question; and further finds, that the provisions of the code for specific requirements relied upon by the claimant are not applicable under the facts in this case, for the reason that the provisions of the code were adopted for the purpose of protecting employes engaged in building and construction work on which building trades employes were or are engaged; and also finds that the injury was not due to the violation of a specific requirement. In view of said findings it is the order of the Commission that the order of June 8, 1929, be vacated; that the employer's application for reconsideration be granted and that the application of the claimant for an additional award be denied.
"Note: Appropriate credits to be taken from the award of regular compensation for any payments of additional compensation, based on the violation of a specific requirement, which may have heretofore been made."
The Commission thereafter advised relatrix, through her counsel, that it would be necessary to deduct from the death award in this claim the $1,012.50 which was paid as accrued compensation under the additional award of March 15, 1929, and the Commission proposed to apply all payments due from the death award to this alleged overpayment, beginning at once and continuing until the alleged overpayment was completely exhausted.
The relatrix therefore brings this action in mandamus, seeking to compel the Commission to meet all the payments due upon the death award as they may become due, and without any deduction for the alleged overpayment upon the additional award, and asking that the action of the Commission in rescinding its former order in granting the additional award be held for naught and that the relatrix be permitted to recover, not only the death award, but the additional award, as made March 15, 1929.
To this petition the respondent has filed a demurrer which, admitting all facts well pleaded in the petition, raises the question of law in this case: Was the action of the Commission justified, by virtue of its continuing jurisdiction granted it under Section 1465-86, General Code; and what was the effect of such action without notice to the relatrix?
Messrs. Fackler Woods, for relatrix.
Mr. Gilbert Bettman, attorney general; Mr. R.R. Zurmehly, and Messrs. Thompson, Hine Flory, for respondent.
By this demurrer the parties seek a determination of the paramount question in this case, which is whether or not the Commission had power to take the money which it paid upon an order for the additional award and apply the same on the amount to be paid on the original award, after finding that such additional award was erroneously made. This we think was within the jurisdiction of the Commission and within its control and discretion, as authorized by Section 1465-86, General Code, which reads as follows:
"The powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion may be justified."
While the original award and the additional award are separate and distinct, they grow out of the same accident, to the same individual, and the proceeds of the allowances made by the state go to the same beneficiaries. These amounts are interdependent, for the additional award can only be made for the violation of a specific requirement and must rest upon the foundation of an original award. There is such a close relation between the two sums that, under the section of the statutes above quoted, the Commission may use its discretion to carry out its judgment in the premises, as authorized by Section 1465-86. This control over its former findings and orders this court has repeatedly recognized. Industrial Commission v. Dell, Exrx., 104 Ohio St. 389, 135 N.E. 669, 34 A. L. R., 422; State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St. 271, 143 N.E. 574. We do not regard the case of Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, as authority for the position that an order may not be made affecting both awards. The case of Gavalek v. Industrial Commission, 100 Ohio St. 399, 126 N.E. 317, is distinguishable on the facts.
The beneficiaries are not required to pay any sum back to the state, but are simply being paid in a different manner than as first awarded for the death claim. The full amount of the death claim will be duly paid, and we see no invasion of the rights of the relatrix in the premises if it be established that an additional award is not legally payable.
The remaining question is whether this change by the Commission of its former order, without notice to the relatrix, as averred in the petition, invalidates the same. We are advised by brief of counsel for the Commission that in the event of an answer being filed an issue would be tendered upon this question of notice; but, the matter being under consideration upon demurrer, we must take the averments of the petition as we find them and assume that no notice was given to the relatrix prior to the change.
The petition does not show that after the change was made any application for a rehearing upon that point was made to the Commission by the relatrix, but that at once this action in mandamus was commenced. The General Code makes no provision for a notice to the beneficiaries in a situation such as is presented by the petition, although Sections 871-10, 871-22 and 1465-44, General Code, provide that the Commission may adopt reasonable and proper rules governing its procedure, regulate and provide for the kind and character of notice, etc. The Commission, pursuant to such power, has adopted rules with reference to practice before it as to added awards, and of such rules this court takes judicial notice. Rule 4 makes provision for notice, and this court does not approve making orders, such as in the case at bar, in violation of such rule. Said rule provides:
"Application for rehearing may be filed by either party within thirty days from the date of the order and finding of the Commission complained of, provided there is filed with such application for a rehearing, all new and additional proof not previously considered by the Commission and relied upon by the applicant in support of his application for a rehearing. Upon the filing of such application the Chief, Division of Workmen's Compensation, shall fix a time and place for hearing the same, notifying both parties thereof. Upon the hearing of the application for rehearing, if it appears to the Commission that substantial justice has not been done to the party, a rehearing will be granted and the parties will be notified of the time and place of such rehearing. If, upon the hearing of said application for rehearing, the Commission is of the opinion that substantial justice was done the parties at the original hearing, the application for rehearing will be denied."
Assuming the notice of the meeting of June 29th not to have been given, is the relatrix entitled to the relief sought upon that ground alone? By this action in mandamus the relatrix seeks not only to continue the payments for the death award without any deduction for the alleged overpayments, but that the Commission continue to pay the $5.62 1/2 per week on the additional award until the full amount of $1,950 shall have been paid.
There is nothing in the petition which shows that the finding of the Commission on June 29th, that there was no violation of a specific requirement by the employer, is not correct; so that the mandamus seeks to compel the employer to pay a penalty under an award which, in the judgment of the Commission in the exercise of its jurisdiction as to findings of fact, is not sustained by the evidence.
This right to correct an error which the Commission found that it had made and to credit the payments erroneously made on such additional award upon the death claim is the crucial question to be solved. The court is of opinion that such action was within the jurisdiction of the Commission, but that due notice of such hearing should have been given the relatrix. However, the failure so to do is not to be regarded as a ground alone for issuing the writ of mandamus. By availing herself of the provisions of rule 4 as to rehearings, relatrix might have secured a reconsideration of the order of June 29th and have thus regained anything she may have lost by lack of notice.
It is well established that a party seeking relief by mandamus must first show a clear right to the relief sought, and that the act to be enforced is one of absolute obligation, and that no adequate remedy at law exists. State, ex rel. Baen, v. Yeatman, Auditor, 22 Ohio St. 546; State, ex rel. Gallinger et al., v. Smith, Auditor, 71 Ohio St. 13, 72 N.E. 300; State, ex rel. Van Harlingen, v. Board of Education, 104 Ohio St. 360, 136 N.E. 196; 38 Corpus Juris, 550, paragraph 20. This principle is so well established as not to require citation of many authorities.
In view of the liberal practice before the Commission, opportunity for a rehearing and reconsideration was open to the relatrix. She must have had full knowledge of the order of June 29th within the 30 days, as provided by rule 4, and she might have secured a rehearing, for the jurat of the petition in mandamus was signed by her on July 26th; so that, instead of beginning an action in mandamus in this court, she should have first exhausted her remedies before the Commission.
We are of opinion that the petition does not show a clear right entitling the plaintiff to the extraordinary remedy of mandamus, and the demurrer for that reason must be sustained.
Demurrer sustained and writ denied.
MARSHALL, C.J., KINKADE and MATTHIAS, JJ., concur.
ROBINSON and JONES, JJ., not participating.