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

(No. 3751

Decided October 11, 1944.)

*Mr. W. A. Smith*and *Mr. O. G. Terry,*for relator.

*Mr. Thomas J. Herbert,*attorney general, and *Mr. Robert E. Hall,*for respondent.

Sherick, J.

Relator’s petition, the averments of which are admitted by respondent’s answer to be true, pleads that on the 5th day of April 1944, the Industrial Commission made the following order respecting his claim No. 1359039:

> “This claim coming on for further consideration on the claimant’s application for additional compensation beyond date of last payment, filed herein December 22, 1943, and on the claimant’s verbal request made April 4, 1944, that the commission determine the nature and extent of his disability, make an award for the disability' found, and pay said award in a lump sum, the commission finds from the record that claimant has made a complete recovery from his injury of January 2, 1935, and that he is now being compensated for permanent total disability in claim *350No. 1309957; it is, therefore, the order of the commission that both the application for additional compensation and the application for lump sum settlement be dismissed.”

Belator further averred that that order denies him the right to further participate in the state insurance fund, although it finds that his present physical condition is not the result of his injury of January 2, 1935; that thereafter, within the prescribed time, he asked for a rehearing as provided by Section 1465-90, General Code, which rehearing the commission denied. Belator asked that a writ of mandamus issue, directing the commission to grant him a rehearing.

The pleading, therefore, presents only one issue and requires the solving of but one query: Does the order of April 5, 1944, deal with the extent of relator’s disability under his claim No. 1359039, or is it in fact a finding that his disability is the result of other outside causes.

The parties agree that if the order determines the extent of relator’s disability, the matter rests solely with the commission. But if it is a denial that relator’s disability is due to the injury, then the order amounts to a finding that it lacks authority to inquire into the extent of the relator’s disability, and is in fact a refusal to exercise jurisdiction, which entitles the relator to a rehearing as provided by Section 1465-90, General Code.

Belator maintains “that it makes no difference that he is being compensated for total disability on another claim. ’ ’ He says that his incapacity is admitted, and that his disability has been found not to be the result of his 1935 injury, from which it must follow that he is entitled to a rehearing and he may appeal to the courts if the commission denies him some compensation.

*351The commission insists that it has fonncl that relator has made a complete recovery from his 1935 injury; that its order goes only to the extent of disability; and that, “since the record definitely shows that permanent and total compensation is being- paid for the 1933 injury, claimant [relator] is being- paid the highest degree of disability that can be paid under the workmen’s compensation law.”

It is argued that if the writ should issue, a rehearing be had, compensation be not allowed, the order be then appealed from, and a judgment be entered finding relator is entitled to participate in the fund, then the commission in compliance with the rule established in *State, ex rel. Moore,*v. *Industrial Commission,*141 Ohio St., 241, 47 N. E. (2d), 767, must pay some compensation by reason of the judgment. It is pointed out that the result is total disability being paid on one claim, and partial disability on another; and that the exclusive right of the commission to determine the extent of relator’s disability and the amount of compensation to be paid has been encroached upon by the courts and taken from it, all of which is contrary to the spirit of the compensation act.

We think the order of April 5, 1944, clearly states that claimant is found to have made complete recovery from his 1935 injury. This goes only to the extent of his injury. The words “that he is now being compensated for permanent total disability in claim-No. 1309957” are in one sense but surplusage, because the finding would have been complete and sufficient for its purpose without it. On the other hand, the phrase injected served another purpose. It recognized that relator was totally disabled for which he was being-compensated to the greatest extent contemplated by the compensation act. If he were totally disabled by *352a prior injury, a second injury could not increase his disability.

Upon his application he has been, found totally disabled by his 1933 injury. He now in fact asserts that the extent of that disability was less than that found by the commission. Yet he has accepted that award without objection, and now boldly aslcs for more; that he be paid more than one hundred per cent for his total incapacity; and that the commission be required to pay more for his disability than the act permits.

To direct an issuance of the writ requires a warped reading of the order, so that it may fall within the strict letter of the statute. It might well follow, if a right to participate in the fund was adjudged, that a court will not only enter the field of determining the amount of disability and compensation, but require by its aid the violation of the letter and spirit of the compensation act.

It is true that the act should be liberally construed, but when ill considered construction may cause all this to come to pass it reaches absurdity which liberality ought not approve or countenance.

The relator having failed to establish a clear right to the relief asked, the writ must be denied and the petition dismissed.

*Writ denied.*

Hornbeck and Geiger, JJ., concur.

Sherick, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.