
    McHale, Appellant, v. Industrial Commission of Ohio, Appellee.
    (Decided January 31, 1940.)
    
      Messrs. Gopperman, DeBard $ Greenwood and Mr. W. 8. Marshall, for appellant.
    
      Mr. Thomas J. Herbert, attorney general, and Mr. E. P. Felker, for appellee.
   G-uernsey, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Crawford county, Ohio, sustaining a demurrer by the defendant, Industrial Commission of Ohio, to the petition of the plaintiff, Anthony McHale, dismissing the petition and entering judgment in favor of the defendant.

The petition alleges that on April 22, 1922, plaintiff was employed by the Holmes Erker Company and received an injury in the course of employment with that company on that date; that by reason of that injury he has suffered and will .continue to suffer wage impairment; that he filed Ms claim with the Industrial Commission following the injury; and that the commission granted him temporary total compensation to April 30,1923, besides paying certain medical fee bills, the last of which was paid to Dr. E. C. Patton in the sum of $58.50, subsequent to an order of the commission therefor, dated November 1, 1930.

On November 3, 1938, plaintiff filed his application with the commission for additional compensation based upon his wage impairment. As to this application for additional compensation the commission made the following order:

“Proof of record discloses that claimant was injured January 22, 1922; .that temporary total compensation was awarded to April 30, 1923, in the sum of $771.42. The file further discloses that under date of February 24, 1933 [1923], a fee bill was received by the commission from claimant’s attending physician, Dr. E. C. Patton, for the sum of $58.50, which represented Dr. Patton’s services between October 25, 1922, and January 25, 1923. Fee bill was approved for payment under date of February 27, 1923, but through an oversight, warrant for such fee bill was never mailed to said physician, until it was subsequently brought to the commission’s attention on November 1, 1930, on which date an order was made for the purpose of payment of this fee bill to Dr. Patton, which had been previously submitted on February 24, 1923.

“No application was filed for compensation between the date of presentation ■ of bill of Dr. Patton and the filing of the claim for additional compensation on November 3, 1938, a period of approximately 15 years subsequent to the last date of payment of compensation. For this reason, it is the order of the commission that from proof of record the commission does not have jurisdiction to consider the application for additional compensation, filed November 3, 1938, as same was not filed in accordance with the provision of Section 1465-86 of the General Code of Ohio; therefore, the application for additional compensation is dismissed.”

It is further alleged that the foregoing order was made on April 20, 1939; that this cause is one of that class of cases wherein the claimant is entitled to a direct appeal to the Common Pleas Court as on a de novo hearing; that his average weekly earnings at the time, of the accident aforesaid were $38.50; that to date there has been paid him by the commission the sum of only $771.42 as and for temporary total compensation; and that there is still due him from the 1st day of May, 1923, to date, as and for temporary partial compensation on a wage impairment basis, the further sum of $3,750.

The prayer of the petition is that a jury may be impanelled, that plaintiff may be found to be entitled to participate in the State Insurance Fund and that judgment may be rendered thereon, together with plaintiff’s costs herein incurred and reasonable attorney fees.

The petition was filed May 10, 1939, less than thirty days after the making of the order appealed from.

Defendant’s demurrer to the petition is upon two grounds: First, that it is apparent upon the face of the petition that the court has no jurisdiction of the subject of the action; second, that the facts alleged are not sufficient to constitute a cause of action.

The first ground on the demurrer is not considered in the opinion of the lower court or argued in the briefs in this court, but as it raises the question of jurisdiction of the subject-matter we will consider it.

It is apparently based on the assumption that-as Section 1465-90, General Code (117 Ohio Laws, 86), as in effect at the time the application for additional compensation was filed with the commission and the .order set forth in the petition made thereon and appeal taken, did not provide for an appeal to the Common Pleas Court from orders of the character set forth in the petition, the Common Pleas Court was without jurisdiction of such appeal.

As shown by the petition, the injury for which additional compensation is claimed was sustained on April 22, 1922, and the original claim for compensation was filed with the commission sometime between the date of injury and April 30,1923, as the commission granted the plaintiff temporary total compensation to April 30, 1923. The claim, therefore, at the time it was originally made was governed by the provisions of Section 1465-90, General Code, as amended 109 Ohio Laws, 296, in effect at the time the injury was sustained, claim filed and order for temporary total compensation made. This section, as then in effect, provided for an appeal to the Common Pleas Court from an order of the commission of the character made by it on April 20, 1939.

The filing of an application for compensation with the Industrial Commission is a proceeding within the terms of Section 26, General Code, and is governed thereafter, in all respects, by the statutes in force when the claim was originally filed. Industrial Commission v. Vail, 110 Ohio St., 304, 143 N. E., 716; State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St., 537, 9 N. E. (2d), 505; State, ex rel. Longano, v. Industrial Commission, 135 Ohio St., 165, 20 N. E. (2d), 230.

Section 26, General Code, provides that no amendment of a statute shall affect a proceeding existing at the time of the amendment, unless otherwise expressly provided in the amending act.

A perusal of the various amendments made to Section 1465-90, General Code, since the amendment thereof in 109 Ohio Laws, 296, above mentioned, fails to disclose any express language giving any of said amendments a retroactive operation.

Consequently the right of the plaintiff to appeal from the order made by the commission on April 20, 1939, is governed by the provisions of Section 1465-90, General Code, as amended 109 Ohio Laws, 296, which authorize such appeal from an order of the character mentioned. The first ground of the demurrer is without merit.

The second ground of the demurrer is based on the provisions of Section 1465-86, General Code, as amended 115 Ohio Laws, 423, effective October 4, 1933, the pertinent part of 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. Provided, however, that no such modification or change or any finding or award in respect of any claim whether filed heretofore or hereafter shall be made with respect to disability, compensation, dependency or benefits, after ten years from the last payment theretofore made of compensation or benefits awarded on account of injury or death, or ten years after the injury in cases in which no compensa-' ti on ever has been awarded.”

The second ground of the demurrer raises two questions: First, whether the fee bill allowed to the attending physician of the plaintiff, in the sum of $58.50, based on the services rendered to the claimant by the attending physician between October 25, 1922, and January 25, 1923, submitted to the commission on February 24, 1923, and approved for payment by the commission under date of February 27, 1923, but for which, through an oversight, no warrant was mailed to the attending physician until it was subsequently brought to the commission’s attention on November 1, 1930, when an order was made for the purpose of payment of the fee bill and the same was paid, constitutes compensation awarded on account of injury, within the meaning of Section 1465-86, General Code, as amended 115 Ohio Laws, 423; and, second, if such payment constitutes compensation awarded on account of injury, within the meaning of Section 1465-86, General Code, as amended 115 Ohio Laws, 423, whether it, being the last payment made in the case, was made within ten years prior to the filing by the plaintiff with the commission on or about the third day of November, 1930, of- his application for additional compensation based upon wage impairment.

The word “compensation” as used in Section 35 of Article II of the Constitution of Ohio, relating to workmen’s compensation, comprehends all payments and disbursements of every character made by the Industrial Commission to or for the benefit of workmen and their dependents, for death, injuries or occupational diseases, occasioned in the course of such workmen’s employment.

Section 1465-78, General Code, a section of the Workmen’s Compensation Act'enacted pursuant to this constitutional provision, provides that no compensation shall be allowed for the first week after the injury is received, except the disbursement thereafter authorized in the act for medical, nurse and hospital services and medicines, and for funeral expenses.

Reading this section in connection with the constitutional provision mentioned, it is obvious that disbursements authorized by the Workmen’s Compensation Act for medical, nurse and hospital services and medicines are comprehended in the word “compensation’ ’ as used in the act. Consequently the payment to the attending physician, alleged in the petition in the instant case, constituted a payment of compensation awarded on account of injury, within the meaning of Section 1465-86, General Code, as amended 115 Ohio Laws, 423.

The first question attempted to be raised by the second ground of the demurrer being determined in the affirmative, the further question to be determined is whether the payment of the attending physician’s fee bill, being the last payment made by the commission in the cause, was made within ten years of the date the application of the plaintiff for additional compensation was made on or about November 3,1938.

Payment implies the existence of a debt, of a party to whom it is owed, and of the satisfaction of the debt to that party. Tuttle v. Armstead, 53 Conn., 175, 22 A., 677; 3 Bouvier’s Law Dictionary, Rawle’s Third Revision.

Although the fee bill in the instant case had been approved for payment under date of February 27, 1923, the warrant for such fee bill was not mailed to the physician until November 1, 1930, on which date an order was made for the purpose of payment of the bill. The debt therefore was not satisfied and payment was not made, in contemplation of law, until after the issuance of the warrant on November 1, 1930, and the mailing thereof to the attending physician.

As such payment to the attending physician, on November 1, 1930, was made within ten years of the time the plaintiff had originally filed his claim for compensation with the commission, it was made during the time the jurisdiction of the commission was continuing, and constituted the last payment of compensation made by the commission on account of injury. Under the provisions of Section 1465-86, General Code, as amended 115 Ohio Laws, 423, and by reason thereof, the commission had continuing jurisdiction over the case for the period of ten years following the date of such payment, which included the time in which the plaintiff filed his claim for additional compensation, and the time in which the order of the commission rejecting the same on jurisdictional grounds was made. The finding of the commission that it did not have jurisdiction of the application of plaintiff under date of November 3, 1938, for additional compensation based on his wage impairment, was contrary to law and the appeal from such order was properly made to the Common Pleas Court.

For the reasons mentioned, the Common Pleas Court erred in sustaining the demurrer of defendant to the petition and dismissing the same, and for this error the judgment of the Common Pleas Court will be reversed at costs of defendant and the cause remanded to that court with instructions to overrule the demurrer, and for further proceedings according to law.

Judgment reversed and cause remanded.

Crow, P. J., and Klinger, J., concur.  