Opinion
Decided March 14, 1932.
Workmen's compensation — Appeal — Final order — Dismissal of application for modification of award — Application for rehearing unnecessary in pending proceeding, and amended statute inapplicable — Section 1465-90, General Code — Compensation payable for removal of eye previously injured, when.
1. Industrial Commission's recommendation that certain amounts were due employee and ordering payment of medical expenses held not "final order" so as to preclude appeal in subsequent proceeding for final order in such case (Section 1465-69, General Code).
2. Amendment to compensation act, relating to rehearing as condition precedent to proceedings in common pleas court held inapplicable to proceedings pending before adoption of amendment (Sections 1465-90 and 26, General Code).
3. Employee could recover compensation for loss of eye on removal of formerly injured eye in which he still had sight.
ERROR: Court of Appeals for Hamilton county.
Mr. Eugene Carlin, for plaintiff in error.
Mr. John Cowell, for defendant in error.
This case is presented on error from the court of common pleas of Hamilton county, wherein judgment was rendered for Orville Ferguson, the plaintiff below.
On June 16, 1923, plaintiff below, an employee of the plaintiff in error, the Thompson-Starrett Company, while working in a building as a carpenter, was injured by having acid splashed in his eyes by employees of a subcontractor, who were cleaning the outside of the building.
The Thompson-Starrett Company had elected by virtue of Section 1465-69, General Code, to pay compensation direct to any of its employees injured during and by reason of their employment.
The defendant in error sought and received medical attention, and the eye was removed by a surgeon. There is conclusive evidence that the same eye had many years before been injured by a piece of steel penetrating the eyeball, and that a traumatic cataract had formed in it as a result of this injury. The evidence is in conflict as to just how much sight was left in the eye before its removal. The jury answered a special interrogatory by stating that the defendant in error had limited vision.
On August 2, 1923, the defendant in error made application to the Industrial Commission for an order allowing him compensation for the loss of the eye, and, on the 16th of July, 1924, the commission made the following recommendation:
"The Commission therefore finds that there is due said employee, Orville Ferguson, the following amounts for compensation, medical expenses, etc.:
"Compensation at rate of $15 per week for 3 2/7 weeks, total, July 7, 23, to August 6, 23 ........................................... $49.29,
"Less the first seven days excluded by law.
"Medical expenses, etc. ........................ $_____
"It is the further order of the Commission that the employer be and is hereby ordered to pay the medical bills for the necessary attention.
"Dated at Columbus, this 16th day of July, 1924."
The defendant in error then filed an appeal in the court of common pleas of Hamilton county, within 30 days, but that court held there had been no final order of the commission from which an appeal could be taken. Error was prosecuted to this court from such judgment, but owing to a defect in the service of summons in error the petition in error was dismissed.
At the time of the injury and the original application, the law of Ohio provided for no proceeding for a rehearing by the Industrial Commission, merely requiring that the appeal in the court of common pleas should be filed within 30 days from the final order of the commission.
It having been determined by the court that no final order had been made, and we are unable to find any in the record as of the date of July 16, 1924, the defendant in error proceeded by a subsequent application to the commission, filed February 16, 1927, to obtain such final order, which was made November 17, 1930, as follows: "On this day the application for Modification of Award, filed by the claimant herein, was considered by the Commission and it was ordered that the Application for Modification of Award be dismissed and that the order of July 16, 1924, be reaffirmed."
The defendant in error, upon the denial of the application for modification of the previous recommendation of the commission in the final order made November 17, 1930, filed within 30 days his appeal in the court of common pleas, which resulted in a judgment, compensating him for the loss of an eye, assessing the sum of $15 per week for 100 weeks from June 16, 1923, the date of the injury, making a total amount due of $1,500, plus $200 attorney's fees.
The jury in its answers to interrogatories stated that the defendant in error had previously sustained an injury to the eye in question, but was not blind in that eye, having a limited vision therein, and that he had lost total vision by the removal of the eye. The general verdict is not inconsistent with the answers to the interrogatories or the evidence.
We are requested to reverse the judgment of the trial court for two principal reasons: First, that the court of common pleas had no jurisdiction in the second trial to entertain the appeal from the Industrial Commission.
It is contended that the first finding or recommendation of the commission was made July 16, 1924, and was a final order. The court found otherwise, and it would be manifestly unjust, in view of such undisturbed ruling of the court, to now declare it a final order and thus preclude the defendant in error from any hearing upon appeal in the court of common pleas. However, as has been said, our examination of the record fails to disclose any final order of the commission as of date July 16, 1924. The proceeding filed with the Industrial Commission in 1927, after the Court of Appeals had dismissed the petition in error, while termed an "Application for Modification of Award," was to all intents and purposes simply an application for a final order in the case, which was made November 17, 1930, and was the first final order made by the commission. The appeal to the common pleas court was filed within 30 days thereafter.
It is admitted that this matter was pending before the Industrial Commission when the law was amended (Section 1465-90, General Code), permitting rehearing and making the denial thereof a precedent condition to proceedings in the court of common pleas. Under the provisions of Section 26, General Code, the new law was inapplicable to the pending proceeding.
W.S. Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N.E. 790; Industrial Commission v. Vail and Industrial Commission v. Kenemy, 110 Ohio St. 304, 143 N.E. 716; Kossick v. Sharon Steel Hoop Co., 113 Ohio St. 33, 148 N.E. 343; Industrial Commission of Ohio v. Hilshorst, 117 Ohio St. 337, at page 339, 158 N.E. 748.
The law in force at the time of initiating the matter before the commission has been followed.
Passing to the second contention, it is claimed that the defendant in error cannot be compensated for the loss of an eye, because he did not have at the time it was removed the sight of the eye.
In view of the fact that it has been definitely held that it is not necessary that an employee should have an eye removed in order that he be compensated in full for the loss thereof, if the sight in the eye is completely destroyed, and that complete destruction of the sight in an eye is therefore a complete loss of the eye, we consider the contrary proposition equally logical, that if there were no sight in the eye the removal thereof would not, in the eyes of the law, be a loss of an eye, entitling the employee to compensation for loss of the eye, but in reality loss of the sight furnished by the eye. Otherwise, an employee might be twice compensated, first, for the loss of complete sight, and then for the loss of the eye itself.
In the instant case this question was definitely considered by the jury, which found inferentially, by their general verdict, and, specifically, by the answers to the interrogatories, that the defendant in error had sight in the eye removed, for the loss of which he was entitled to compensation.
We therefore find no error prejudicial to the plaintiff in error in the record. The judgment of the court of common pleas is affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.