
    Barnes v. Industrial Commission of Ohio.
    (Decided February 10, 1930.)
    
      Mr. J. Harrington Boyd, Mr. Wm. F. Miller and Mr, H, Henry Miller, for plaintiff in error.
    
      
      Messrs. Calhins, Storey & Nye, for defendant in error.
   Richards, J.

Claude F. Barnes was an employee entitled to the benefits of the Workmen’s Compensation Law and was injured in the course of his employment on August 7, 1920, having been struck by a street car while driving a truck in the city of Toledo. On August 16, 1920, he filed an application with the Industrial Commission for compensation, but this application did not include any injury which may have occurred to his right leg. From time to time the Industrial Commission acted favorably on his application, making temporary allowances to be paid covering various periods, and, finally, on September 6, 1927, ordered compensation paid in an amount fixed by it to June 30, 1928. On December 10, 1927, Barnes filed with the commission an application for modification of the award, and this application is the first that he made for any injury to his right leg. On January 19, 1927, his right leg was amputated, and the claim is made in his behalf that the injury to this leg was a part of the injury which he suffered on August 7, 1920. The following appears from the record of the Industrial Commission, showing the action which it took on January 17, 1928:

“Mr. Gregory moved that the application for modification of award be denied.”

That motion was seconded and adopted by unanimous vote. We need not be concerned with the question whether the action thus taken by the Industrial Commission was a final order from which appeal would lie, because in fact no appeal was taken therefrom. On the contrary, the claimant filed an application for a rehearing, and on December 14, 1928, the commission took the action indicated by the following entry on its records:

“Mr. Gregory moved that whereas it appears that the commission has been paying compensation for the disability dne to the alleged injury and retains jurisdiction of the case to pay for all disability resulting from the alleged injury, within the limits permitted by law, and that whereas counsel for claimant contends that the right leg of claimant was affected by said injury, which has not been recognized as yet by the Commission, and has filed his application solely for such reason, the Commission therefore orders that the application for rehearing be dismissed and that the case be held on the question of granting further compensation to claimant for any existing disability due to injury. ’ ’

Within thirty days after the making of that order the claimant filed in the court of common pleas his notice of appeal from the decision. The trial court, after the offer of certain records of the Industrial Commission, directed a verdict in favor of the commission and judgment was rendered thereon.

The first question for determination is whether the proceeding was under the law (Section 1465-90, General Code) in force at the time the first application for compensation was filed on August 16, 1920, or whether it is controlled by the law, as amended, in force at the time the application for modification of award was filed on December 10, 1927. The importance of determining this question is apparent from the fact that under the latter law the claimant before appealing is required to make application for rehearing, and to offer evidence on such application, and to appeal from the decision thereon, and then to introduce such evidence as had been received by the commission, and such competent evidence as had been offered.

It will be noticed that no final disposition of the claim had been made by the Industrial Commission prior to the time that the application for modification was filed on December 10, 1927, the former orders having been simply temporary allowances, jurisdiction of the claim being retained for further consideration. While being so retained, the application for modification was filed, and was received by the commission, and considered under the same number and title as when the claim was originally filed in 1920. We think this should be construed as a continuation of the same proceeding by way of supplement or amendment, and not the commencement of a new proceeding. If the original application had been finally disposed of, and the time for filing an application for rehearing had elapsed, and thereafter additional injuries resulting from the same accident had developed, a different situation might well be presented.

Reliance is placed on Industrial Commission v. Monroe, 27 Ohio App., 169, 161 N. E., 31; but in that case the opinion lays stress upon the fact that a final award had been made of the maximum amount allowable per week, and no further proceedings were taken or action had until nearly two years thereafter. Under such facts, the Court of Appeals held that the application, while denominated one for modification, should he treated as a new application. We think the decision reached under such facts is not applicable to a case where the original proceeding has not been finally ended, but jurisdiction has been retained by the commission for the making of such further orders as may be appropriate. There was therefore but one proceeding before the Industrial Commission in the case now under consideration, and it would be governed by the law in force at the time the original application was filed on August 16, 1920, as held by this court in Jasionowski v. Industrial Commission, 22 Ohio App., 112, 117, 153 N. E., 247.

The only order from which the claimant undertook to appeal was that of December 14, 1928, and that order recites that the commission had not as yet recognized the claim filed for loss of the right leg, and for that reason it dismissed the application for rehearing and directed that the case be held on the question of granting further compensation for any existing disability due to injury. As we construe this language, the Industrial Commission still retained jurisdiction to consider and determine the claim filed for the injury to the right leg if it should find that such injury occurred on August 7, 1920, in the course of the employment.

It does not appear that the commission found it had no jurisdiction of the claim or no authority to inquire into the extent of disability or the amount of compensation. The order does not deny the right of the claimant to receive some compensation, nor his right to continue to participate. On the contrary, the record shows that the Industrial Coraraission has and asserts continuing jurisdiction as to the extent of the claimant’s injuries received on August 7, 1920, and the amount he should be paid.

The order made on December 14, 1928, was not of such character as would authorize an appeal. It follows, therefore, that the court of common pleas had no jurisdiction on the attempted appeal to that court and the appeal should have been dismissed.

Judgment reversed, and, proceeding now to enter the judgment which should have been entered in the court of common pleas, it is ordered that final judgment be entered dismissing the appeal of Claude F. Barnes to the court of common pleas.

Judgment reversed, and appeal to court of common pleas dismissed.

Judgment reversed.

'Wihliams and Lloyd, JJ., concur.  