
    TIME FOR APPEAL FROM REJECTION OF A CLAIM BY THE INDUSTRIAL COMMISSION.
    Common Pleas Court of Montgomery County.
    William H. Shawen v. The Industrial Commission of Ohio.
    Decided, April 17, 1918.
    
      Appeal — Under the 'Workmen’s Compensation Act — Effect of the Continuing Jurisdiction of the Commission — Neither the Commission Nor Claimants Bound by Technical or Formal Rules.
    
    Appeal to the common pleas court by an injured workman under the state compensation act is taken “within thirty days after the notice ■ of the final action of the commission,” if filed within thirty days after denial of a rehearing.
    
      John J. Hoover, for plaintiff.
    
      Harry N. Nolan, Assistant Prosecutor, contra.
   Snediker, J.

In this case there has been made a motion to dismiss for the reason that the appeal was not filed within thirty days after the plaintiff received notice of the final action of the defendant denying him the right to participate in the fund.

The question presented by this motion and for our solution is as to the meaning ,and intent of the Legislature in that part of Section 1465-90 of the General Code (workmen’s compensation law), which reads as follows:

“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 ground going to the basis of claimant’s right, then the claimant within thirty days after the notice of the final action of the commission, may by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way and' be entitled to a jury if he demands it. ’ ’

In the case at bar application was made for compensation, and was in December of 1916 denied by the commission on grounds going to the .basis of the claimant’s right. An application for a re-hearing was filed in January of 1917, and a re-hearing was denied in June of 1917. Upon the notice of the denial of the re-hearing plaintiff, within'thirty days thereafter, filed his notice of appeal in the court of common pleas.

Was such notice of appeal a compliance with the section before referred to, or should it have been given within thirty days of the notice of the denial of the right, in December, 1916 ?

The fact that by Section 1465-86 the board is given “a continuing power and jurisdiction over each ease, ’ ’ and the authority “from time to time to make such modification or change with respect to former findings or orders, with respect thereto as in its opinion may be justified,” prevents all'awards of the board from having the force, effect and finality of a judgment. In Ohio a judgment is defined to be a “final determination of the rights of the parties.” No award is conclusive, either against the fund or against the claimant, while the foregoing authority, power and jurisdiction are vested in the commission. This being true, as to the-question of the claimant’s right to participate, 'the last action of the board is at any time the final action. If after denial a claimant’s case is again brought to the attention of the board by motions for a rehearing and the 'board, as it did in the case at bar, by its action, denies once more the claimant’s right to participate, on any of the grounds specified in the section (1465-90), then this last action of the board constitutes its final action, and the appeal may, in our judgment, be filed within thirty days from notice thereof.

'This act is entitled “to a most liberal construction” as to appehls, for the reason that many of the claims are presented by 'claimants without the aid of a lawyer. Technically there is some reason for taking the view that appeals should be filed thirty days from the date of notice of the first denial on statutory grounds. This seems to be hinted at in the case of Snyder v. Board of Awards, 94 O. S., p. 342. But the act provides (Section 1465-91) that the board is not bound “by any technical and formal rules of procedure.” And in our opinion the claimant should not be so bound, if he can be said fairly to be entitled to proceed along any particular line. If there is any question about the views heretofore expressed then there should be a requirement or rule of the board that the board, on the filing of a petition for a- re-hearing, shall vacate its former order, renew such order or finding if the re-hearing is denied, or make another proper order, if allowed. In no event should a claimant be required or allowed to imperil-his right of appeal in exercising his right to. ask the board for a re-hearing.

The motion, therefore, to dismiss this case is hereby overruled, and the entry handed to the court by counsel in pursuance of the making of such motion sustaining the same, will not be approved. * 1 !  