#### The Industrial Commission *v.*Hogle.

*Workmen’s compensation—Appeal to common pleas court—Section 1463-90, General Code—Final action denying compensation necessary, when—Industrial Commission records to show final action.*

1. The court of common pleas is without jurisdiction to entertain an appeal from the Industrial Commission pursuant to the terms of Section 1465-90, General Code, until the Commission has taken final action in the premises denying the claimant the right to participate at all or to continue to participate in the state insurance fund, on the ground: First, that the injury was purposely self-inflicted, or, second, that the injury was not sustained in the course of employment, or third, upon any other ground going to the basis of the claimant’s right.

2. The Industrial Commission speaks by its record, and such final action, to be the basis of an appeal, must affirmatively appear upon the record of the proceedings of the Commission.

(No. 17288

Decided June 26, 1923.)

Error to the Court of Appeals of Knox county.

The facts incident to the solution of the problem presented are as follows:

On June 3, 1919, the defendant in error, Gluy R. Hogle, while at work for the Mt. Vernon Bridge Company, was struck over the left eye with an iron bar while engaged in turning channels.

On July 21, 1919, he filed a claim with the Industrial Commission asking compensation for “flesh cut, lost sight of left eye,” and on March 20, 1920, filed a supplemental claim with the Commission, asking for compensation for the loss of his left eye;

The claim was heard by the Commission on the *36429tli day of April, 1920, and the Commission found that the defendant in error sustained an injury while working for the Mt. Vernon Bridge Company on June 3, 1919, in the manner set forth in his application ; that the employer was a subscriber to the state insurance fund; that the injury was not self-inflicted ; and that prior to the time of filing the application Hogle had not begun a civil action against the employer. The Commission authorized compensation to be disbursed from the state insurance fund, and ordered the bills of the doctors who made the examination paid, but made no order as to compensation to be paid Hogle, and took no final affirmative action fixing the amount of compensation to be paid. About the middle of June, 1920, the applicant sent an attorney to the office of the Industrial Commission, who for the first time learned of what he claims was a final disposition of the claim.

On June 24, 1920, Hogle, plaintiff below, filed his appeal in the common pleas court of Knox county, and on the same day filed his petition in that court, and at that time filed a written waiver of the defendant, waiving the issuing and service of summons, and voluntarily entering the appearance of defendant in such action.

On July 6, 1920, the defendant below filed its answer setting up two separate defenses, the first being in the nature of a general denial, after admission of the employment of plaintiff, his weekly wage, and that the Mt. Vernon Bridge Company had complied with the Workmen’s Compensation Law by paying into the state insurance fund; the second defense was, in substance, that defendant below took jurisdiction of the matter, made findings in favor of *365plaintiff, but had never affirmatively denied plaintiff the right to participate in the state insurance fund, and that therefore plaintiff could not appeal under Section 1465-90, General Code.

The reply of plaintiff below was in the nature of a general denial.

The cause was tried in the court of common pleas resulting in a verdict for the plaintiff, motion for directed verdict made at the close of plaintiff’s testimony, and renewed at the close of all the testimony, also a motion for judgment notwithstanding the verdict, and motion for new trial, all being overruled. Judgment was entered on the verdict, which judgment was affirmed by the Court of Appeals. Error is prosecuted here to reverse the judgments below.

*Mr. Jolrn 0. Price,*attorney general; *Mr. B. B. Zurmehly*and *Mr. Paul M. Ashbaugh,*for plaintiff in error.

*Messrs. Ewalt & Blair,*for defendant in error.

Day, J.

A determination of the question herein presented depends upon whether the court of common pleas had jurisdiction to hear the appeal from the finding of the Industrial Commission.

The right to maintain the action is founded upon Section 1465-90, General Code, which provides, in part:

“The Commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in ease the final action of such Commission denies the right of the claim*366ant 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 the claimant's right, then the claimant, within thirty (30) days after the notice of the final action of such Commission, may * * * appeal," etc.

It will be noted that an appeal only lies in case the final action of the Commission denies the claimant the right to participate upon one or more of the three classes of grounds set forth in the statute.

Now, every fact was found by the Commission in favor of the claimant, and there was no final action upon the statutory grounds, even though upon the printed form appear these words:

“And the claim was closed.

“ (Note.—The word ‘closed' indicates that no continuation was had.)"

This appears to have been done under date of April 29,1920.

There were certain recommendations by one C. J. Wardlow, an investigator of the Commission, and T. R. Metcher, the chief of the medical division.

These recommendations might or might not be followed by the Commission, but nothing in the record discloses that any affirmative action was ever taken by the Commission itself in the nature of a final action upon this claim. The recommendation to the Commission by the employees thereof is not sufficient in and of itself. The Commission must act in the premises, and until that was done either one way or the other, either by allowance or rejection of the claim upon one of the statutory grounds, there *367was no final action within the meaning o£ Section 1465-90, General Code. The Commission speaks only by its record, as is provided by Section 1465-40, General Code, and the evidence is silent as to any such affirmative proof.

A part of that section provides:

“All proceedings of the board shall be shown' on its record of proceedings, which shall be a public record, and shall contain a record of each case considered, and the award made with respect thereto, and all voting shall be had by the calling of each member’s name by the secretary and each vote shall, be recorded as cast.”

The meaning of the expression “final action” as used in Section 1465-90 has received judicial interpretation in this state in *Snyder*v. *State Liability Board of Awards,*94 Ohio St., 342, 114 N. E., 268:

“The term ‘final action’ as used in Section 1465-90, General Code (103 O. L., 88), has relation to the question whether or not the Industrial Commission has jurisdiction to allow compensation to a claimant out of the state insurance fund, and under the provisions of that section, as a condition precedent to the right of claimant to file his appeal in the court of common pleas, there must be a denial of his light to participate at all in such fund, based upon one of the jurisdictional matters enumerated in the section.”

Applying the principle therein announced, it is a prerequisite to filing an appeal in the court of common pleas that there must be a denial of appellant’s right to participate at all or to continue to participate in such fund, “based upon one of the jurisdictional matters enumerated in the section.”

*368This record, on the other hand, shows that the findings of the Commission were in favor of the applicant, so far as the Commission acted in the premises. Until there was final action, upon one of the statutory grounds, denying him participation in the fund, there was no right to maintain the appeal in the court of common pleas; the common pleas court was without jurisdiction to entertain such action; the motion interposed by defendant for a directed verdict in its favor should have been sustained; the Court of Appeals therefore erred in affirming the judgment of the common pleas court overruling such motion, for all of which the judgment of the Court of Appeals is reversed.

*Judgment*reversed.

Marshall, C. J., Jones and Matthias, JJ., concur.

Robinson, J., concurs in the syllabus, but not in the judgment.