
    Industrial Commission of Ohio v. Pemberton.
    (Decided November 14, 1930.)
    
      Mr. Gilbert Bettmcm, attorney general, and Mr. B. B. Zurmehly, for plaintiff in error.
    
      Messrs. Corn, Jenkins, Hopkins <& Collier and Mr. Stanley S. Stewart, for defendant in error.
   Mauck, J.

Ben Pemberton, by his petition in the common pleas, alleged that on June 7, 1926, he was in the employment of the Alpha-Portland Cement Company in Lawrence county, Ohio; that that company was subject to the requirements of the Workmen’s Compensation Law, and had contributed to the state insurance fund according to the requirements of the Industrial Commission. He pleaded that on June 5, 1926, the employing company had ignited two piles of rubbish in its lime mines, and that, when on June 7 the plaintiff entered into said mine for the purpose of performing his duties as a workman therein, he had difficulty in breathing, and became unconscious by reason of the smoke and gases in the mine, that on December 14 he became so disabled that he was compelled to quit work, and that he has been so disabled ever since. The pleading shows that on December 31, 1926, the plaintiff filed a -claim with the Industrial Commission setting forth the disability above referred to and asking for compensation for such disability; that on May 3, 1927, his claim was denied; that on May 28, 1927, the plaintiff filed an application for rehearing; and that subsequent to that time additional testimony was taken by and before the commission; and that on December 8, 1928, the plaintiff was again denied any right to participate in the fund. Within sixty days thereafter this petition was filed on appeal from the Industrial Commission. The defendant, Industrial Commission, met this petition with an answer of two defenses. The first defense was a general denial, and the second defense says that, after testimony was taken on the rehearing of the claim, the claim came on for hearing by the defendant commission, and that on May 10,1928, the commission found that the applicant was injured in the course of his employment on June 7, 1926; that his employer was a subscriber to the State Industrial Fund; that the injury was not purposely inflicted; and that the defendant had jurisdiction of the claim. The second defense says further that the commission ordered that such other investigation as might be necessary should be made to determine the extent of the applicant’s disability and the amount of compensation which might be due him on account of said injury; that further investigation was made, and the matter again came on for consideration by the defendant commission, which, on December 7, 1928, ordered that compensation be denied, but that medical bills be allowed, and the answer specifically charges that no additional application for rehearing before the commission was filed by the applicant, and that, because there was no such additional application for rehearing, the common pleas court had no jurisdiction of the subject-matter on appeal. A demurrer was filed to this second defense. The record does not show that this demurrer was ever disposed of, although the plaintiff in error’s brief complains that the court did sustain the demurrer. Trial was had, resulting in a judgment for the plaintiff, and this judgment the commission now seeks to reverse by a petition in error in this court.

Whether the demurrer was sustained or not, it is admitted that the defense set up in the answer was true, in that no application for rehearing was made by the applicant except the application of May 28, 1927, and, if this fact is fatal to the jurisdiction of the trial court, this judgment must, of course, be reversed whether any record was saved upon the demurrer or not. The section of the General Code that fixes the procedure in such cases is 1465-90. That section, after defining the plenary power of the commission, provides as follows:

“In all claims for compensation on account of injury, or death resulting therefrom, if the commission finds that it has no jurisdiction of the claim and has no authority thereby to inquire into the extent of disability or the amount of compensation, and denies the right of the claimant to receive compensation, or to continue to receive compensation for such reason, then the claimant may within thirty days after receipt of notice of such finding of the commission, file an application with the commission for a rehearing of his claim.”

The section then provides the procedure for such rehearing, and continues:

“If the commission, after such hearing, finds that it has no jurisdiction of the claim and no authority to inquire into the extent of disability or amount of compensation claimed, then the claimant, within sixty days after receipt of notice of such action of the commission, may file a petition in the common pleas court.”

The statute, of course, requires that an application for rehearing shall be made to the commission before the applicant has a right of appeal to the common pleas, and, if such application is not made, the court is without jurisdiction to entertain the appeal. Industrial Commission v. Ramsey, 119 Ohio St., 497, 164 N. E., 509. The right to appeal in this case, however, in case an application for rehearing was filed by the applicant, has been determined by State, ex rel. Rowlands, v. Industrial Commission, 118 Ohio St., 475, 160 N. E., 705. It is therefore apparent that an appeal was perfected in this case, provided there was such application for rehearing as the statute requires; the position of the commission, however, being that a second application for rehearing ought to have been filed after the final denial by the commission. ■

It is evident that the applicant could never have secured compensation without filing the application for rehearing that he did file in May, 1927. The interpretation sought by the commission would require us to hold that in such a case as we have at bar the applicant must file two applications for rehearing at two different stages in the progress of his case. It might be sufficient to say that the statute does not require two applications, and that we cannot impose conditions upon the applicant that the Legislature has failed to impose. The real difficulty experienced by the plaintiff in error is that it has not reconciled itself to the soundness of the position taken by the Supreme Court in the Rowlands case, supra. The real point in the position of the commission is that, when it makes a finding that it has jurisdiction, and then makes a further finding that the applicant is not entitled to compensation, its judgment should be conclusive, and no appeal should lie to the courts, and this, as we have pointed out, is a view not sustained by the Supreme Court in the Rowlands case. It appears to us that counsel for plaintiff in error overlook the fact that the object of the applicant for compensation is to secure relief. He is not concerned in establishing the jurisdiction of the Industrial Commission. As pointed out by Judge Robinson in the Ramsey case, thousands of cases are disposed of by the Industrial Commission as a matter of routine. The purpose of the application for rehearing is to challenge the particular attention of the commission to a particular case. It brings to the attention of the commission the fact that the particular applicant has something out of the routine to urge upon the commission to the end that he may receive compensation. The final order made after the application for rehearing has been filed, and the one from which an appeal can be taken, is the order that determines that the applicant is to have no compensation. When that order is made, Ms right to an appeal arises, and for the court to say that he must file a second application for rehearing is to read into the statute something that the lawmakers have not written there.

The jurisdiction of the common pleas court is sustained. The second defense of the answer was insufficient in law.

Judgment affirmed.

Middleton, P. J., and Blosser, J., concur.  