Opinion
No. 21992
Decided March 5, 1930.
Workmen's compensation — Award from surplus fund — State unable to collect from non-complying employer — Attorney general to certify inability to collect within two years — Mandamus lies to pay from surplus without certification after two years — Sections 1465-54 and 1465-74, General Code.
1. The failure of the state to collect an award from an employer who had failed to comply with the Workmen's Compensation Law, or to certify, within two years after the date of the award, that it cannot be collected, does not prevent an injured employee from obtaining his award from the surplus fund. ( State, ex rel. Thompson, v. Industrial Commission, 121 Ohio St. 17, 166 N.E. 806, followed and approved.)
2. Under the provisions of Section 1465-74, General Code (111 O. L., 223), when such award has been made, it becomes the duty of the attorney general, after certification by the commission, to institute suit forthwith against such employer for the collection of the award; and it becomes his further duty, within the period of not more than two years after the date of the award, to certify to the commission the result of his efforts to collect from the employer; if no certification be made within said two year period, the award must be paid from the surplus created by Section 1465-54, General Code.
3. Mandamus will not lie to compel the commission to pay the award out of the surplus fund unless, (a) the attorney general has certified that such award cannot be collected in whole, or (b) more than two years have elapsed and no such certification has been made to the commission as required by law.
IN MANDAMUS.
This is an original action in mandamus filed in this court, wherein the cause was heard upon the general demurrer of the relator to the answer of the commission. John H. Croy, the relator, alleged in his petition that on October 12, 1925, he was employed in the remodeling of a building jointly owned by one Harry Thew and Joseph Askins. He further alleged that Thew and Askins did not carry state insurance, although they were employing five or more workmen at the time of the accident; that on the date above mentioned he was injured in the course of his employment, and that in due time he filed his claim for compensation with the commission against Thew. Upon its being later discovered that Askins was a joint owner of the premises with Thew, the commission made Askins a joint defendant in the case and notified him of the proceeding.
On September 15, 1926, the commission found that Croy was employed by Thew and Askins, and that he was injured while in the employ of an employer employing five or more workmen. It found that Thew and Askins had not complied with the Workmen's Compensation Law requiring the insurance of employees, and, on the last-mentioned date, it awarded the relator a total sum of $894.72 for compensation and for hospital and medical expenses paid by the relator.
Thew and Askins having failed and refused to pay the award demanded of them, the commission certified the award for collection to the Attorney General of the state. More than six months thereafter the Attorney General brought suit for the amount of the award and accrued interest against both Thew and Askins in the Allen county common pleas court. In that action Thew filed his answer denying liability, and shortly thereafter filed his petition in bankruptcy in the federal court, where he was adjudged a bankrupt on January 21, 1928. Askins also filed his answer in the cause pending in the Allen county court, wherein he denied the facts plead against him. In February, 1929, a judgment was obtained against Askins in that court, granting Croy the amount of his award and interest thereon. On February 13, 1929, Askins filed his motion for a new trial, and on June 10th of that year his motion was granted and the case set for hearing on October 30, 1929.
The award above referred to was for a period of thirty weeks at a rate of $17.87 per week, terminating on May 17, 1926.
In 1928 the relator filed his application for an additional award. After hearing this application, the commission, on October 4, 1929, made an additional award to Croy for a sum covering his temporary total disability and for a further sum compensating him for the total loss of his right leg, at the rate of $17.87 per week for a period of 175 weeks, and ordered the amount of that award certified to the Attorney General for collection.
The petition prays that a writ of mandamus issue compelling the Industrial Commission to pay the full amount of the sums awarded him under the several orders of the commission. The petition is very verbose, and, like the answer, contains many conclusions of law.
The answer denies that there is any sum due the relator; asserts that his right to participate in the fund has never been established by any court, and no judgment recovered thereon upon the award; that the commission believes the award can be collected in whole or in part from the parties against whom the order is made; and that the Attorney General has not certified the claim as uncollectable either in whole or in part. The remainder of the answer contains mere conclusions of law.
Mr. W.E. Ridenour, for relator.
Mr. Gilbert Bettman, attorney general, and Mr. Oscar Brown. for defendant.
In his brief the Attorney General urges two reasons why the relator should not be granted relief. First, He contends that an employee, who has obtained an award against a noncomplying employer, is not entitled to payment of the award out of the surplus fund before a court or jury has affirmed the finding of the commission. The last paragraph of. Section 1465-74, General Code (111 Ohio Laws, 223), reads as follows: "The payment of any judgment recovered in the manner provided herein shall entitle such claimant to the compensation provided by this act for such injury, occupational disease or death. The attorney general shall, as soon as the circumstances warrant, and not more than two years after the date of such award made by the commission, certify to the commission the result of his efforts to recoup the state insurance fund as herein provided, and if he certifies that such award can not be collected in whole, the award shall be paid from the surplus created by Section 1465-54, and any sum then or thereafter recovered on account of such award shall be paid to the commission and credited to such fund as the commission may designate."
Relying upon the language in the first sentence of that paragraph, the Attorney General contends that the recovery of a judgment against the employer is necessary before the claimant of the award becomes entitled to payment out of the surplus fund; but, construing the entire paragraph, we are unable to arrive at that conclusion. The payment of the judgment certainly entitles the claimant to compensation; so also does the nonpayment of the judgment, or a certificate that the award cannot be collected, equally entitle the claimant to compensation, for the statute explicitly states that, upon the making of such certificate, "the award shall be paid from the surplus created by Section 1465-54." The payment of the award is not made contingent upon the securing of a judgment by the state, but upon its payment, or upon a certificate of noncollectability made within two years after the date of the award. The ultimate purpose of the state's suit is the recoupment of the surplus fund, and any sum, whether "then or thereafter recovered," is to be paid into and credited to that fund. Many of the questions presented have heretofore been considered and discussed by this court, notably in the case of State, ex rel. Thompson, v. Industrial Commission, 121 Ohio St. 17, 166 N.E. 806, where we held that the failure of the state to collect an award from an employer who had failed to comply with the Workmen's Compensation Law does not deprive an injured employee from obtaining his award from the surplus fund.
Second, The Attorney General presents this query to the court: "Is the Industrial Commission authorized to pay any award out of the surplus fund before the attorney general is in a position to certify and does certify whether such an award against a non-complying employer is collectable in whole or in part?" Stated in another form the question is: Can one who has been allowed such award obtain relief by way of mandamus within two years after the award has been made by the commission, where no certificate of noncollectability has been made by the Attorney General? The answer of the Attorney General contains an allegation which is a conclusion of law rather than of fact. He pleads that Section 1465-74, General Code, does not authorize the commission to pay any portion of the award at the present time.
An inspection of the pleadings discloses that the commission made two awards. The first was made September 15, 1926, and was for the sum of $894.72, covering compensation, hospital and medical expenses; the second award of the commission was an additional award made on October 4, 1929. The petition in this case was filed on October 24, 1929, twenty days after the date of the second award. Section 1465-74, General Code, provides that, after failure of the employer to pay the award, the commission shall certify the same to the Attorney General who must forthwith institute a civil action for its collection against the employer in the name of the state. The answer or demurrer to the petition must be filed in ten days; the reply or demurrer to the answer within twenty days, and the demurrer to the reply within thirty days after the return date of summons or service by publication. The section further requires that motions and demurrers must be submitted to the court within ten days after the same are filed, and that, as soon as the issues are made up, the case must be placed at the head of the trial docket and shall be first in order of trial. The last clause provides that the Attorney General, not more than two years after the date of the award made by the commission, shall certify to the commission his efforts to recoup the state fund, and if he certifies that the award cannot be collected "the award shall be paid from the surplus."
These provisions evidence a legislative purpose of requiring speedy proceedings, thereby better conserving the legitimate interests of both the state and injured workmen; of the former by securing the co-operation of the injured employee, who had obtained his award, in the prosecution of the suit by the state against his employer; of the employee, by providing speedy action on the part of the state and by requiring its officer to certify, within a limited time, that the amount cannot be collected. The statute clearly provides that the award cannot be paid from the surplus until payment of a judgment, or until certification is made by the Attorney General; but it is equally clear that he must make such certificate within two years after the date of the award; if he fails to so certify, within his legal time limit, his failure should not inure to his benefit nor deprive the injured workman of his just right to compensation. The state admits that great delay has resulted in this case, because of the amount of investigation required and because of the crowded condition of the Allen county common pleas court docket. But the law yields to these cases the right of way. The first award was made in 1926; meanwhile the claimant, physically unable to move without assistance, has lived upon the charity of others.
We are of the opinion therefore that mandamus will not lie to compel the commission to pay the award out of the surplus fund, unless (a) the Attorney General has certified that such award cannot be collected in whole, or (b) more than two years have elapsed and no certification has been made to the commission during that period as required by law.
In the following cases this court awarded the writ where two years or more had elapsed since the date of the award: State, ex rel. Davis, v. Industrial Commission, 118 Ohio St. 340, 161 N.E. 32; State, ex rel. Thompson, v. Industrial Commission, supra.
Since the first award of the commission was made on September 15, 1926, more than two years prior to the bringing of this action, a writ of mandamus will be issued compelling the commission to pay the amount of that award. However, since we are unable to determine from the petition its exact amount, if counsel can agree the amount may be incorporated in the journal entry. Since two years have not elapsed from the date of the second, or additional award, this action to compel its payment is prematurely brought, and a writ compelling the commission to pay the amount of that award at the present time will be denied.
Writ allowed in part.
KINKADE, MATTHIAS, DAY and ALLEN, JJ., concur.
MARSHALL, C.J., dissents.