
    The State, ex rel. Westley, v. Industrial Commission of Ohio.
    (Decided September 20, 1938.)
    
      Mr. R. N. Larrimer and Mr. Joseph E. Bowman, for relator.
    
      Mr. Herbert 8. Dufy, attorney general, and Mr. Eugene Carlin, for respondent.
   Geiger, J.

' This is an original action in this court wherein the relator prays that a writ of mandamus may issue to command the respondent to fix the extent of the relator’s disability, and to award to the relator compensation commensurate with such disability.

The essential allegations of the petition are that the relator was, on the 9th day of October, 1932, an employee of the city of Columbus, Ohio, in the capacity of a relief worker, and that he then received an injury arising out of his employment.

Respondent answers, setting up the order of the commission made November 28, 1935, holding that the disability was not tbe result of tbe injury, and that tbe commission is without jurisdiction.

Tbe claim of tbe respondent is that tbe relator has received in tbe form of relief, income equal to, and at times in excess of, tbe amount which be was receiving as a relief worker at tbe time be was injured, and that be is not entitled to further participate for tbe reason that be has suffered no impairment of earnings.

It is claimed by tbe relator that be is entitled to have bis compensation based upon bis loss of earning capacity; and tbe fact that be was a relief worker, and after bis injury received as much or more than be earned while working, from public sources, does not deprive him of the right to compensation fixed upon loss of earning capacity.

In tbe case of Industrial Commission v. McWhorter, 129 Ohio St., 40, 193 N. E., 620, 96 A. L. R., 1150, tbe court bolds that an injured relief worker is entitled to tbe benefits of tbe Workmen’s Compensation Act. That case was decided November 27,1934.

Since that decision, Sections 3496-1 to 3496-16, inclusive, General Code, effective May 17, 1935, have provided for public work relief compensation. Section 3496-6, General Code, provides that work relief employees shall be entitled to receive out of public work relief employees.’ compensation fund, compensation and benefits for loss sustained on account of such injury or death, as provided for in tbe Workmen’s Compensation Act, with certain exceptions.

It was held in State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St., 537, 9 N. E. (2d), 505, that when a relief worker employed by a political subdivision dies as a result of an accident, tbe right of bis dependents to compensation must be measured by tbe statutes in force at tbe time of his death; that a statute granting a right of appeal need not provide for a jury trial in reference to tbe facts; and that Section 3496-13, General Code, pertaining to the review of orders of the commission, is a valid remedial statute, retroactive in operation.

This court, in the case of State, ex rel. Kinzig, v. Industrial Commission, No. 2808, Franklin county, March 31, 1938 (unreported), held that where an ena ployee suffered temporary total disability, but his employer continued to pay his wages, such employee is not entitled to compensation out of the state fund, the court holding that Sections 1465-68 and 1465-79, General Code, must be read together, and that payment by virtue of Section 1465-79 is only to be made to those who come within the terms of Section ,1465-68, which provides that the employee shall be paid compensation for loss sustained, and that having been paid his full wages after the injury, he suffered no loss.

In the case of State, ex rel. Rubin, v. Industrial Commission, 134 Ohio St., 12, 15 N. E. (2d), 541, the Supreme Court had before it practically the same question involved in State, ex rel. Kinzig, supra.

The claimant in that case “as a direct result of the injury, suffered a temporary total disability from April 28, 1935, to June 11,-1935.”

The commission found “that claimant’s wages were continued during his period of disability; therefore, there was no authority for payment of compensation over the period from April 28, 1935, to June 10, 1935. The court stated that the whole question is: “Is * * * an employee who has received his regular wages during the period of temporary total disability * * * entitled to compensation for such disability under the Workmen’s Compensation Act?”

The court points out the provision of Section 1465-68, General Code, to the effect that every employee who is injured shall be paid such compensation out of the fund for loss sustained on account of such injury.

The court refers' to Industrial Commission v. Royer, 122 Ohio St., 271, 171 N. E., 337, where, in construing Section 1465-80, General Code, it was held that an employee who suffered partial disability is entitled to compensation, even though he earns, during the period for which compensation is sought, an amount equal to or more than his wages at the time of the injury.

The court in the Rubin case points out that under Section 1465-80, General Code, the allowance for partial disability is based upon impairment of earning capacity.

On the contrary, Section 1465-79, General Code, allows a percentage of the average weekly wage for temporary total disability.

The court says there is evidently a distinction between the two sections. Under Section 1465-80, the loss sustained is the impairment of earning power; under Section 1465-79, it is the loss of wages. Under the circumstances existing in the case there was no loss, and, therefore, no right to compensation for the disability. Does the relator in this case come within the provisions of Section 1465-79 or Section 1465-80?

Section 1465-79 provides in case of temporary disability the employee shall receive the per cent as long as such disability is total.

As pointed out in the Kinzig case, compensation is only allowed for loss sustained, and the claimant in this case not having sustained any loss by virtue of the relief he has received, would not be entitled to compensation if he comes within the provisions of Sections 1465-79 and 1465-68.

Section 1465-79 covers temporary total disability.

The compensation prescribed in Section 1465-68 is “for loss sustained on account of such injury.” Section 1465-79 fixes the compensation as a per cent of his wages, so long as the disability is total. There is no claim that the disability in the instant case is total, and, therefore, Section 1465-79 does not apply, nor do the'provisions of the co-related Section 1465-68.

Section 1465-80, General Code, provides that the employee shall receive a per cent of the impairment of his earning capacity, during the continuance thereof.

The Supreme Court has stated it thus: ‘ ‘ There is evidently a distinction between the two sections. Under Section 1465-80, the loss sustained is an impairment of earning power; under Section 1465-79, it is loss of wages.”

The claimant falls within the provisions of Section 1465-80, and therefore under the” Royer case, supra, the fact that he was earning, or was donated under relief, more than he was earning when injured is not controlling or even important. His right is to have determined the impairment of his earning capacity, and that does not depend upon the amount he may have earned or have paid to him from the relief fund since his injury, provided as a relief worker, his right to compensation is not controlled by the sections especially relating to relief compensation, passed since his injury.

The relator suffered his injury on October 9, 1932. The sections relating to public work relief compensation became effective May 17, 1935. The cause of action of the injured employee accrues at the time he receives the injury and is not subject to diminishment subsequent to the accrual of the right and any right must be measured by the applicable statutes in force at the time of the injury. Industrial Commission v. Kamrath, 118 Ohio St., 1, 160 N. E., 470; State, ex rel. Slaughter, v. Industrial Commission, supra.

The relator’s complaint is1 that the commission before fixing his compensation has required him to file further proof of all his earnings subsequent to October 15, 1934. We fail to see that the commission has a right to require this although it may be possible that in the further examination of this case the amount he has received may throw light upon the impairment of his earning capacity and so may become pertinent. The commission has made no order respecting this claim and should determine whether the relator has suffered partial disability resulting from his injury and if so should determine the extent of the impairment of his earning capacity, if any, and make or refuse an award under this section.

Writ allowed ordering the commission to determine whether the relator is entitled to compensation under Section 1465-80, General Code.

Writ allowed.

Barnes, P. J., and Hornbeck, J., concur.  