
    Lane v. Industrial Commission of Ohio.
    
      Workmen’s Compensation—Law and rules liberally construed in favor of claimants—Rules for rehearing waived by acknowledging letter from claimant’s attorney—Requirement that rehearing applications be submitted on forms, not jurisdictional—Rules 22 and 23, Industrial Commission—Appeal perfected within limitation after final action denying modification of award.
    
    1. Laws referring to administration of workmen’s compensation fund, and rules prescribing procedure by Industrial Commission, should be liberally construed in favor of claimants.
    2. Where Industrial Commission discontinued compensation payments and employe’s attorney wrote commission for rehearing within 30 days of notice of discontinuance, acknowledgment of receipt of letter by commission and request for presentation of proof was a waiver of rules for presentation of case and consent to reconsider same.
    3. Requirements of rules 22 and 23 of the Industrial Commission that applications for rehearing and modification of award be made on forms furnished is not jurisdictional, but may be made in manner that will raise question necessary to hearing of case.
    4. Letter' sent by employe’s attorney within 30 days of notice of discontinuance of compensation payments, fully stating claim for rehearing and reinstatement, sufficiently complied with rule 23 of the Industrial Commission requiring application for rehearing to be filed within 30 days from notice, and appeal taken within 30 days from final action of commission dismissing application was within time.
    (Decided January 24, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Richard C. Swing and Messrs. Hunt, Bennett S Utter, for plaintiff in error.
    
      Mr. Charles S. Bell and Mr. Sylvester C. Mickey, for defendants in error.
   Hamilton, J.

This case grew out of an appeal by the plaintiff in error to the court of common pleas of Hamilton county from an order denying the right of claimant to continue to participate in the state insurance fund.

The trial court held that the appeal was not filed within the time required by law, and dismissed the case. From that judgment the claimant prosecutes error to this court.

The question here for determination turns upon the force and effect of rules 22 and 23 of the rules and regulations governing the application of the ..Workmen’s Compensation Law promulgated by the Industrial Commission.

The record discloses that a temporary award to plaintiff in error, Lane, had been made by the Industrial Commission on account of injuries received by him on August 4, 1922, in the course of his employment; that at different times up until June 17, 1924, the commission had granted applications for modification of a temporary award, and temporary payments were continued until this date; that on June 17, 1924, the Industrial Commission by its action denied further compensation to claimant, for the alleged reason that the present condition of claimant was not the result of the injury of August 4, 1922.

On June 19, 1924, notice of the action taken by the commission on June 17, 1924, was mailed to the address of claimant Lane. Upon what date Lane received the notice does not appear in the record. On July 2, a letter was mailed regarding the claim in question by the attorney for Lane, and was filed with the commission July 7, 1924. The substance of that letter was that the claimant had received a letter of June 19, advising him that his claim was heard on June 17, and further compensation denied, “for the reason that the medical proof on file indicated his present condition is not the result of his injury of August 4, 1922.” The letter proceeds to allege facts concerning the condition of claimant and his injury, and that those facts were provable by physicians’ evidence and other circumstances which it was thought would satisfy the members of the commission that they were in error in cutting off the compensation. It asked for further hearing on the merits of the case.

On July 10 the commission wrote counsel for the claimant, acknowledging receipt of their letter of July 2, and inclosed therewith copies of the review and report of the medical department, and proceeded to state:

“You will note his (Dr. Greiss) report indicated there is no evidence of any disability as result of this injury, and if claimant is suffering any disability, it is due to causes other than this injury. If you can establish by medical proof that claimant’s present disability is directly traceable to this original injury, further consideration will be given this claim. We are inclosing forms 0-84 and 85 for reopening this claim. Proof on which claimant relies to establish his right to further compensation from the state insurance fund should be filed in affidavit form.”

Pursuant to this letter, the affidavits, both on forms submitted and otherwise, were sent in and filed, made under date of July 21, 1924, July 30, 1924, and filed with the commission August 1, 1924.

On September 19, 1924, the commission made a finding as follows:

“Conclusion: The proof on file in support of application for modification of award does not change the conditions from those that were fully considered by the commission June 14,1924. Recommendation: That application for modification of award be dismissed.”

The trial court treated the proceeding as if upon a rehearing under rule 23, which rule requires the application for rehearing to be filed within 30 days after notice of the final action of the commission, found that the application was the filing of August 1, which was more than 30 days from the receipt of the notice of the commission of its action on June 17, and therefore dismissed the appeal on the ground that the application was not filed within the time provided by rule 23.

Plaintiff in error contends that the procedure is under rule 22, providing for modification of awards; that, an award having been granted, the suspension of payment was a modification, and the attempt to reinstate was a further modification of award, and would come under rule 22, under which no time limit is provided; and that, the matter having been presented as for a modification of awards, the action of the commission on September 19, 1924, was the final action, and his appeal was therefore filed less than 30 days from that date.

If the appeal is rightly based on the action of September 19, 1924, the appeal was taken in time.

The law provides that the commission may make rules which shall have the force and effect of law. Rule 23 provides: “Applications for rehearing must be made on forms furnished by the commission.” In view of the filing of July 2 and the commission’s letter of July 10, and the subsequent filing of the affidavits, it would seem the question resolves itself into this: Is the requirement that an application for modification or rehearing must be made on forms furnished by the commission jurisdictional?

All of the decisions are to the effect that the laws with reference to the administration of the workmen’s compensation fund should be liberally construed in favor of claimants. If this be true of the law, it should operate with even more force on the rules prescribed for procedure, promulgated by the Industrial Commission. In fact the rules themselves provide that certain rules may be relaxed if the failure to observe their provisions is occasioned by want of knowledge, and strict enforcement results in hardship and injustice.

We do not think it matters whether the bringing of the claim to the attention of the commission be designated as a modification of award or a rehearing. The facts are that on June 17, 1924, further compensation was denied. On July 7, less than 30 days from that action, a letter fully stating the claims of claimant for a rehearing and reinstatement was filed. Eight days later the commission acknowledged the receipt of this application, and stated, “If you can establish by medical proof that claimant’s present disability is directly traceable to this original injury, further consideration will be given this claim,” and directed that proofs be filed in affidavit form. Within a short time these affidavits were submitted. After several weeks consideration, the commission rejected the claim in the form above stated. Had the commission not replied to the letter of July 2, more force might be given to the argument that the case was closed unless the claimant had followed the forms and procedure required by the rules. But by its letter of July 10 the commission waived the rules and consented to reconsider the case.

Moreover, we are constrained to hold that the requirement of the rules that the applications be made on forms furnished is not jurisdictional, and that the same may be made in a manner that will raise the question necessary to a hearing of the ease. The contention of the commission is highly technical, and would defeat the liberal rule required in the administration of the law.

We therefore hold that the letter of July 2, filed July 7 with the commission, being within 30 days from the receipt of the notice of the discontinuance of payment, was sufficient to comply with the rule, that the final action thereon was September 19, 1924, and that the appeal was filed in time.

The court of common pleas erred in dismissing the appeal, and the judgment will be reversed and the cause remanded, with instructions to reinstate the appeal, and for further proceedings according to law.

Judgment reversed cmd ccmse remanded.

Btjchwalter, P. J., and Cushing, J., concur.  