#### The State, ex rel. Rankin, *v.*Industrial Commission of Ohio.

(Decided April 5, 1941.)

*Mr. C. L. Hawthorne*and *Mr. David 8. Craig,*for relator.

*Mr. Thomas J. Herbert,*attorney general, and *Mr. E. P. Felher,*for respondent.

Geiger, P. J.

This is an original action in mandamus. After naming the parties, the relator recites that on the 1st of October 1925, while in the usual course of his employment for a coal company and while working with timbers at the bottom of a shaft, he sustained a crushing injury to his left side and his back; that he also sustained internal injuries; and that as a direct result thereof he has been left in a permanently crippled condition and is unable to work.

He further states that he filed with the Industrial Commission his application for compensation and his *230claim was allowed and compensation granted for temporary total disability to the 15th. day of December 1925; that he duly filed with the commission his application for further compensation, the last application for such being a motion for modification of award, and proof in support thereof, filed on December 14, 1935; and that the Industrial Commission duly considered the application and on December 15, 1936, made an order “that the commission finds from proof of record in this claim as follows: Proof does not show a new and changed condition of claimant resulting from injury received on October 1, 1925, occurring since original award herein; that the commission has rightfully assumed jurisdiction in this case; that claimant has been adequately compensated for any disability he may have suffered as a result of injury sustained.”

Relator states that this was a final order denying him the right to continue to participate in the fund on a ground going to the basis of his right; and that this order of the commission was made after a medical examination by examiners, who recommended that claimant be referred to the rehabilitation department for its consideration.

Relator further states that within thirty days from this disallowance he filed with the commission his application for reconsideration, the same being filed on January 19, 1937; and that the commission thereupon dismissed the application for reconsideration and failed to grant to the relator a right to have the case set down for the taldng of testimony as provided by Section 1465-90, General Code (111 Ohio Laws, 227).

He further states that he has requested the commission to grant him the privilege of taking testimony as provided by that section and the commission has refused to do so.

He states that the commission has refused to consider his application on the merits, on the ground that it has denied his claim on a jurisdictional ground and *231that no application for rehearing was filed on form C-103; and that he has no adequate remedy at law to compel the commission to grant him a rehearing and to set the case down for the taking of testimony. He prays for a writ of mandamus commanding the commission to consider his application for reconsideration as an application for rehearing under the provisions of Section 1465-90, General Code, and commanding the commission to set his ease for testimony before a referee.

The commission answered setting up three defenses:

In the first defense, after making certain admissions of the facts as alleged by the plaintiff, the Industrial Commission denied all other allegations and further stated:

1. That the date of the injury was October 1, 1925; and that respondent allowed the claim and paid the relator compensation for temporary total disability to December 13, 1925.

2. That on May 4, 1926, respondent denied relator further compensation.

3. That on September 9, 1926, relator filed his application for modification and on November 16, 1926, respondent dismissed the application; that on December 10, 1926, relator filed his application for rehearing; that on March 15, 1927, respondent considered the application as an application for modification and referred the same to the medical department; that on April 15, 1927, an examination was made by the medical department resulting in a negative .finding as shown by the report of April 20, 1927; that upon recommendation of the medical department the relator was examined by a specialist who found no disability; that on June 30, 1927, the commission entered an order to the effect that the claimant had been fully compensated and continued the case; that on July 19, 1927, the commission entered an order reaffirming the order of June 30th; that on August 16, 1927, .relator filed *232his application for rehearing which was considered as an application for modification and dismissed, the commission reaffirming its order of June 30th; and that on various other dates relator filed application for modification, which applications were dismissed by the commission on the ground that the claimant had been adequately compensated.

The respondent further stated that during the period between the date of the accident in 1925 and the present time, the relator was engaged in filing a series of applications and further soliciting aid of various officials to secure the allowance of his claim, the claimant being represented by various counsel.

As a second defense it is asserted that the last date on which the compensation was paid was December 13, 1925; that the last application for modification which is under consideration was filed December 14, 1935, ten years and two days after the date of such payment of compensation; and that by the terms of Section 1465-86, General Code, the commission has no jurisdiction to entertain the application for modification or to make any change of the award.

As a third defense it is asserted that the respondent had found that the application of February 16, 1938, for rehearing was not filed within the period fixed by statute, *vis.,*within thirty days from the date of the receipt of the notice of the order dismissing the application ; that the finding is a final order .not subject to appeal; and that there is no abuse of discretion on the part of the commission.

To this answer the relator filed an amended reply-stating that on December 22, 1936, he received notice of denial of his application filed on December 14, 1935, and that he filed his application for rehearing or reconsideration on January 19,1937; that medical bills were paid in connection with the relator’s claim in various amounts extending from May 4, 1926, to December 24, 1936; that although he was paid compensation-to De*233eember 13, 1925, the last payment was not made until December 15, 1925; that he received a notice of disallowance filed December 14,1935; and that on December 22, 1936, and .on January 19, 1937, he filed his applications for reconsideration or rehearing.

This case is so presented by counsel for each side as to make it rather difficult to trace clearly what must ultimately be considered as the controlling principles.

This is an action in mandamus, under the provisions of Section 12283 *et seq.,*General Code, in which relator prays that a writ issue commanding the commission to consider his application as an application for rehearing under Section 1465-90, General Code, and that the commission be ordered to set his case down for the taking of testimony before a referee as provided by such section.

Mandamus will issue only when a clear right thereto appears. This writ may require an inferior tribunal to exercise its judgment or proceed to discharge any of its functions, but it can not control judicial discretion and can not be invoked to correct error. It may not issue where its employment does not give a full and complete remedy, or where there is a plain and adequate remedy in the ordinary course of law. *State, ex rel. Phelps,*v. *Gearhart, Supt.,*104 Ohio St., 422, 135 *N.*E., 606.

Section 1465-86, General Code, provides that the jurisdiction of the commission over each case shall be continuing, and that it may from time to time make such modifications or change with respect to former orders as in its opinion may be justified, provided, that no modification or change in respect to any claim shall be made with respect to disability, compensation or benefits after ten years from the last payment theretofore made of compensation awarded on account of injury or death.

Section 1465-90, General Code, defines the power of *234the commission to hear and determine questions, and provides for appeal in certain cases only.

The section provides that the commission shall have power to determine all questions within its jurisdiction, and its decision thereon, including the extent of disability and the amount of compensation to be paid in each claim, *shall be final.*In all claims for compensation, if the commission *finds that it has no jurisdiction of the claim and no authority to inquire into the extent of disability or the amount of compensation*and denies the right of the claimant to receive compensation or to receive compensation *for such reason,*then the claimant may, within thirty days *after the receipt of notice*of such finding, file an application for a rehearing, whereupon the former action thereon shall be vacated and the commission shall fix a date for rehearing. Such rehearing shall be had and the evidence for and against the allowance of the claim submitted. If the commission after such rehearing *finds that it has no jurisdiction of the claim*and no authority to inquire into the extent of disability or the amount of compensation, then the claimant, within thirty days *after receipt of notice,*may file a petition in the Common Pleas Court and the commission shall certify to such court a transcript of the record of such rehearing from which the court or jury shall determine the right of the claimant to participate in such fund. If the finding of the court or the verdict of the jury is in favor of the claimant’s *right to participate*in such fund, the court shall certify such finding to the commission which shall thereupon order compensation to be paid. The provisions of the section just referred to (Section 1465-90, 111 Ohio Laws, 227) were in force at the time of the beginning of this action, but since that time the section has been amended by setting forth more definitely the matters which permit an appeal (117 Ohio Laws, 86). The present effective section provides that the commission shall have full power to *235determine all questions within its jurisdiction and its decisions thereon shall he final. The commission shall definitely pass upon every issue raised. In all claims for compensation if the commission denies the right of a claimant to receive compensation, or to continue to receive compensation, the commission shall state the grounds on which the claim was denied, and if the claim was denied on any of the ground stated in the statute, then the claimant may, within thirty days after the receipt of notice of such findings, file an application for rehearing, whereupon the former action shall he vacated. If the order of the commission does not state the grounds on which the claim was denied, or if the same is not definite, the claimant may maintain an action in mandamus in the Supreme Court. If the commission, after the hearing, denies the right of the claimant it shall state the grounds on which the claim was denied *and if the claim, was denied on any of the grounds specifically stated,*then the claimant, within sixty days, may file a petition in the Common Pleas Court of the county, after making timely application for rehearing. Thereafter the proceeding is practically the same as in the statute before the amendment.

The relator, after describing his injuries, states that he filed with the commission his application for compensation, which was allowed. Compensation was granted him for temporary total disability on the 15th of December 1925. He states that he filed his application for further compensation. The last, being a motion for modification of award and proof in support thereof, was filed on December 14, 1935. He alleges that the commission duly considered the application and, on December 15, 1936, found that the proof did not show a new and changed condition of the claimant resulting from the injury he received October 1st, *1925;*and found “that the commission has rightfully assumed jurisdiction in this ease; that claimant has been adequately compensated for any disability he may *236have suffered as a result of the injury sustained.” The net result of this is that for a period of ten years after the first payment the commission has had the continuing control over the award of any compensation; that it has full power to determine all questions within its jurisdiction and its decision thereon, including the extent of disability and the amount of compensation, is final; that only in the event it finds it has no jurisdiction of the claim and no authority to inquire into the extent of the compensation, and denies the right of the claimant to receive compensation *for such reason,*the claimant may proceed within thirty days to file an application for rehearing, after which the preliminaries necessary to perfect the appeal shall be taken as provided by the statute. It will thus be seen that in certain matters, among which are the granting and continuing of the compensation and the fixing of the amount, the commission has exclusive, continuing-jurisdiction, and upon each application for modifica-, tion the former order shall be vacated. It does not appear that the claimant is limited in any way to file applications for modifications or for rehearings as often as he may wish, provided, however, that no modification of any finding shall be made after ten years from the last payment awarded on account of the injury or death. The action of the commission upon these applications is final, and there is no appeal from such finding except when the denial is made on account of the specified finding as to lack of jurisdiction, etc.

In the case at bar there does not seem to be any claim made by the relator for compensation for any' injury other than the original injury. It is true that this injury is designated in his various applications in somewhat different terms, but it is essentially a claim for compensation for the original injury in which no claim is asserted that there has been an acceleration of any prior injury. Upon these several applications (whether they be for modification or for re*237hearing is of no particular consequence), the commission has reinvestigated the claim of the relator with repeated medical examinations, hut on each occasion the commission has restated, in varying language, that it has assumed jurisdiction of the case; that proof does not show a new and changed condition; and that the claimant has been adequately compensated for any disability he may have suffered as a result of the injury sustained. It appears, therefore, that whatever the commission did and whatever conclusion it arrived at, it was acting within exclusive statutory authority and the determination of those questions was final.

In the case of *State, ex rel. Smith,*v. *Industrial Commission,*138 Ohio St., 70, 32 N. E. (2d), 837, decided by the Supreme Court of Ohio on March 19, 1941, there is much of interest. That case being so newly decided we will not discuss it in detail, of course recognizing the fact that it does not definitely pass upon the issues made in this case. It refers with commendation to the case of *State, ex rel. Butram,*v. *Industrial Commission,*124 Ohio St., 589, 180 N. E., 61, where it is held in paragraph two of the syllabus:

“By virtue of Section 1465-90, General Code, the Industrial Commission must in the first instance determine whether it has jurisdiction of a claim, and if this question is resolved in the affirmative its further action is a process of fact finding and its judgment is final. In the exercise of that jurisdiction its function is to determine the extent of the disability and the amount of compensation. There is no appeal from that determination and therefore mandamus does not lie to compel the commission to grant a rehearing.”

This case seems to us to be of weight in determining the case at bar.

The case of *State, ex rel. Griffey,*v. *Industrial Commission,*125 Ohio St., 27, 180 N. E., 376, holds that the continuing jurisdiction of the commission, under authority of Section 1465-86, General Code, applies only *238to new and changed conditions occurring after the original award, and that an application for modification of an award can be made at any time upon a showing of new and changed conditions after the original award.

In *Metal Specialty Co.*v. *Gregory et al., Industrial Commission,*128 Ohio St., 452, 191 N. E., 701, the commission took jurisdiction of a claim and awarded compensation up to a definite date.

In that case, upon further application for additional compensation for continuing consequences of the same injury, the commission found that ‘ ‘ ‘ the claimant has been fully compensated for the disability resulting from the injury.’ ” The court held that such finding was not a finding that the commission had no further jurisdiction of the claim, but was a determination of the extent of the disability and of the amount of compensation to be paid under the Code; and that the continuing jurisdiction of the commission was not divested by the denial or the dismissal of an application denominated “ ‘application for rehearing.’ ” The court states, at page 455 in that case :

“Having properly assumed jurisdiction of the case, the commission had authority to determine ‘the extent of disability and amount of compensation to be paid.’

“That is exactly what it did. In the exercise of this jurisdiction it is ‘final’; *i. e.,*so long as it acts reasonably and in good faith, its action is not subject to reversal or modification by another tribunal. It may, however, under the terms of Section 1465-86, General Code, *supra,*itself modify or change such findings upon proof of new or changed conditions within the period of limitation. Pursuant to this authority it has continued to entertain the claimant’s applications for further compensation, * *

The case of *State, ex rel. Gerard,*v. *Industrial Commission,*128 Ohio St., 558, 192 N. E., 730, was an action for a writ of mandamus instituted in the Supreme *239Court to require the commission to grant the relator a hearing upon an application for rehearing of his claim for compensation. The court held that there was no denial of compensation upon jurisdictional grounds, but that, on the contrary, the commission found all jurisdictional facts in favor of the relator. In that case, the commission, having assumed jurisdiction, found that the disability suffered was due to the injury and determined the extent of disability and the impairment of capacity. The court, quoting from Section 1465-90, General Code, stated that “the commission has ‘full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon, including the extent of disability and the amount of compensaton to be paid in each claim, shall be final.’ ” The court further stated that it has been announced in numerous decisions that under Section 1465-90, General Code, a claimant is entitled to a rehearing only when the commission bases its denial of the right of claimant to receive compensation or to continue to receive compensation upon its finding that the commission has no jurisdiction of the claim.

In *Noggle*v. *Industrial*Commission, 129 Ohio St., 495, 196 N. E., 377, it is held that when the commission assumes jurisdiction of a disability claim, finds that claimant’s disability is but partial, and upon such finding denies compensation for total disability, such denial is not made upon “ ‘a ground going to the basis of the claimant’s right,’ ” and is not subject to appeal under the provisions of Section 1465-90, General Code.

As is stated in the second paragraph of the syllabus in that case: “When the commission concedes or finds all facts in claimant’s favor necessary to give it jurisdiction, and actually assumes jurisdiction of the claim, Section 1465-90, General Code, endows the commission with ‘full power and authority to hear and determine all questions within its jurisdiction and its *240decision thereon shall he final.’ A finding or determination of the extent of disability is the determination of a question within the commission’s jurisdiction, and from such determination there is no appeal.”

In that case the court also pointed out that the commission has continuing jurisdiction to modify or change its former findings as in its opinion may be justified. See cases cited on page 503 *et seq.,*of the *Noggle case, supra.*See, also, *State, ex rel. Kauffman,*v. *Industrial Commission, 121*Ohio St., 472, 169 N. E., 572; *State, ex rel. Fortner,*v. *Industrial Commission,*127 Ohio St., 289, 188 N. E., 8; *Kaiser*v. *Industrial Commission,*136 Ohio St., 440, 26 N. E. (2d), 449; *New Pittsburgh Coal Co.*v. *Stillwagner,*47 Ohio App., 189, 191 N. E., 709.

Much of the argument of counsel is devoted to the question as to whether the application in the instant case was made within the period of ten years after the final payment. This discussion involves the question as to when a check mailed by the commission in payment of a claim under Workmen’s Compensation Act ■is in fact paid to the claimant. We neither find this matter of sufficient importance, nor the law definitely enough established, to justify us in endeavoring to solve the question.

There is also a question as to limitation of thirty days, *vi's.,*as to whether the limitation should be measured from the time the notice was placed in the mail or from the time it was received by the workman. It is unfortunate that these time margins are so narrow as to make the determination of the running of these time limitations hinge upon the solution of the questions as to whether the notice is given at the time it is mailed or received, and whether the last payment is made at the time the check is mailed, or received by the claimant, or cashed by him. But each of these matters, we feel, in view of our determination of the major question, is of slight importance and we do not *241assume to determine just when the thirty-day and ten-year statutes begin to run in regard to the facts in this case.

Our conclusion is that under the statute, the commission having taken jurisdiction of this particular case and having continuously for over more than ten years heard and reheard the applications of the claimant for a modification of his award, the determination of the commission as to the extent and continuance of his injury and the amount of the award is entirely within the jurisdiction of the commission and there is no appeal from its finding. Therefore it would be idle to compel the commission by a writ of mandamus to answer again the question that it has so frequently answered, namely, the amount of compensation to which the workman is entitled. The commission having exclusive jurisdiction in this matter, and having assumed the burden that was cast upon it by the original application for compensation, we see nothing to be gained by the issuance of a writ of mandamus.

Much has been stated about the abuse of discretion, which would give the court jurisdiction to compel the commission to proceed to hear the application for modification. But we find no evidence of any abuse of discretion upon the record. It would appear, so far as the record goes, that the commission was diligent in affording to the workman all the protection that the statute afforded him, but it further appears that after repeated examinations the commission repeatedly determined that he had already been compensated sufficiently for the injury he suffered. This was a matter wholly within the discretion and judgment of the commission. We can not control its judgment or discretion, or review its action, without a showing of abuse of discretion.

*Writ denied.*

Barnes and Hornbeck, JJ., concur.