
    The W. S. Tyler Co. v. Rebic.
    
      (Decided November 17, 1927.)
    
      
      Messrs. Tolies, Hogsett, Ginn S Morley, for plaintiff in error.
    
      Mr. M. C. Harrison, for defendant in error.
   Hamilton, P. J.

In the court of common pleas of Cuyahoga county, this was an action on appeal from a decision of the Industrial Commission of Ohio, denying the right of the defendant in error, Ely A. Rebic, to participate in the state insurance fund.

It appears from the record that the W. S. Tyler Company was a self-insurer. Rebic was an employee of the W. S. Tyler Company on February 28, 1925, and claims that in discharging his duties he was required to do heavy lifting, by reason of which he on that date suffered a severe strain, resulting in a right inguinal hernia, for which he was operated upon.

Rebic claims that on June 6, 1925, he went to his employer and made oral application for compensation, which was refused. He thereupon made written application to the Industrial Commission of Ohio. Compensation was denied by the Industrial Commission. He thereupon filed his appeal, without having made application for rehearing to the Industrial Commission.

At the trial, on the appeal, the court permitted Rebic to offer oral testimony in addition to the record made before the Industrial Commission. The trial resulted in a verdict and judgment for plaintiff Rebic.

Two specifications of error are presented here:

(1) Was the appeal taken properly?

(2) Was oral testimony admissible, in view of the provisions of the Workmen’s Compensation Law?

The question whether or not the appeal was properly taken turns on what law governs the appeal at the lime it was filed.

Prior to July, 1925, the statute governing appeals (Section 1465-90, General Code) did not require that an application for rehearing be filed with the Industrial Commission before filing the appeal. íhat statute is found in 109 Ohio Laws, p. 296, and provides among other things:

“Provided, however, in case the final action of such commission denies the right .of the claimant to participate at all or to continue to participate in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other jurisdictional ground going to the basis of the claimant’s right, then the claimant, within thirty (30) days after the notice of the final action of such commission, may by filing his appeal in the common pleas court of the county * . * * be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. ’ ’

This statute was amended (111 Ohio Laws, 227), and the amendment became effective July 14, 1925, which was prior to the time the application of the claimant was filed with the Industrial Commission. The amended statute requires the filing of an application for rehearing of the claim, etc., and provides that, after the rehearing, if the commission finds that it has no jurisdiction of the claim, the claimant may, within sixty days, file a petition in the court of common pleas, etc.

The question therefore is which of these laws controls the proceeding.

If the claimant, Rebic, made, an oral application for compensation to the self-insured company on June 6, and an oral application is sufficient to be considered as a proceeding, then the claimant’s appeal was properly taken.

If the claim of the company that.oral application for compensation was first made August 1, Í925, is correct, then, if the oral application is a proceeding, the claimant would be required to proceed under the terms of the amended section by applying for a rehearing, and claimant, not having taken this step, the appeal would have to be dismissed.

In the case of Caton v. Defiance Screw Machine Products Co., decided by the Court of Appeals for Defiance county, Ohio, being case No. 52, it was held that verbal application was sufficient to start a proceeding to obtain compensation. We are in accord with that decision, and hold that the claimant, by making a verbal application to the company for compensation, started a proceeding.

In the case of Industrial Commission v. Vail, 110 Ohio St., 304, 143 N. E., 716, the Supreme Court held that an application for compensation is a proceeding, and within the operation of the provisions of Section 26, G-eneral Code, and this holding makes the law in force prior to July 14, 1925, applicable to this case, provided the claimant made his verbal application prior to that date.

The fact of the making of the application on June 6th is contested by the company, and a motion was made to dismiss the appeal under the claim that the application, if sufficient, was not made until August 1, 1925, subsequent to the taking effect of the amended statute. While the record is not satisfactory on this preliminary hearing on the motion as to just what the trial court considered or had before it, we must presume that the court considered the facts and found that the application was made prior to July, 1925. This was a question of fact, and was determined on sufficient evidence. The appeal was properly taken.

The claim that the admission of “other evidence,” in addition to the record made before the Industrial Commission, was error, is disposed of by the decision in the case of Industrial Commission v. Hilshorst, 117 Ohio St., 337, 158 N. E., 748, decided November 9, 1927, holding that “other evidence” is admissible. '

It is also argued that the trial court erred in refusing to give the following special charge, requested after the general.charge:

“I instruct you that you must consider the rules of the Industrial Commission governing the allowance of hernia claims along with all other matter contained in the transcript of the record made before the Industrial Commission (B. of Ex. 46).”

While Section 871-22, General Code, gives the Industrial Commission power to make certain rules and regulations relative to, the exercise of its powers and authorities, it does not authorize the commission to adopt rules which would limit the right to recovery for injuries as a result of and growing out of the scope of the employment of claimant. Such rule as requested here would contravene the statutes, and would undertake to limit the right of recovery, provided the injuries brought the claim within the scope of the law. The court did not err in refusing the charge.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

Mills and Cushing, JJ., concur.

Judges of the First Appellate District, sitting in place of Judges Levine, Vickery and Sullivan, of the Eighth Appellate District.  