
    No. 656
    FLINT v. SCIOTO POWER CO.
    No. 19892.
    Supreme Court
    On motion to certify.
    Dock. June 11, 1926;
    4 Abs. 393.
    1283. WORKMEN’S COMPENSATION— Where the question of the time within which an application for compensation must be filed was not raised in the hearing before the Commission, may the corjpany take advantage of the fact that the application was not filed in time on appeal to the Common Pleas Court?
   Ida Flint filed an application with the Industrial Commission for compensation for the death of her husband on January 22, 1924.

Attorneys — Abernethy & Simkin, Cireleville' for Flint; Chas. Gerheart and O. W. Newman, Columbus, for Company.

It appears that Mrs. Flint’s husband was injured on July 21,1919 and died on June 4, 1923. The injury was caused by a fall upon the third rail of tracks belonging to and maintained by the Scioto Railway & Power Company, Mr. Flint being employed by said company. The company was immediately notified of the injury and thereupon caused medical service to be rendered and a payment of $56 was made on account of the injuries. Later Mr. Flint returned to work although he was constantly under the observation of a physician up to the time of his death.

The applicatipn was pending until February 25, 1925, at which time said application was dismissed upon the finding of the commission that there was no connection between the injury received by Mr. Flint an dhis death.

Upon filing an appeal with the Pickaway Common Pleas the petition was dismissed upon motion of the company on the ground that death did not occur within the statutory period of two years from the date of said injuries. The judgment of the Common Pleas was affirmed by the Court of Appeals.

Flint in the Supreme Court contends:

1. That the statutory requirement for filing an application was waived because the question was not raised in the hearing before the commission.

2. That the rights accruing by the amendment of the Workmen’s Compensation Law after the filing of the application before hearing controlled.

3. That she is entitled to a trial by jury.  