Worsley v. Indust. Com. , 6 Ohio Law. Abs. 353 ( 1927 )

FARR, J.

“It must be conceded that the rights and duties of the parties are fixed by Section 1465-90 GC., as amended. The Commission complains: first, that he did not exhaust his remedy before the Commission, and that there was no final order by the Commission before filing his appeal in the Court of Common Pleas, and that therefore the Court of Common Pleas has no jurisdiction of the action.

It is clear that, in the instant case, he had only asked for and had a reconsideration of his claim, which is essentially different from a rehearing. He could not appeal until there was final action upon one of the statutory grounds denying him participation at all in the fund, and. if there was no right of appeal, then the Court of Common Pleas was without jurisdiction to hear the cause.

The claimant urges that this is very technical and that he did file an application for reconsideration, which should be considered an application for a rehearing, and that he acted upon the advice of the local representatives of the Commission in Youngstown, who also recommended the allowance of his claim. It appears that the Commission had separate blanks for each purpose, and Worsley filed an application for the reconsideration of his claim, which was allowed.

It may seem somewhat technical to differentiate between reconsideration and rehearing but if the plaintiff in error’s contention be granted, that the Commission should have considered his application as one for rehearing, then there has been a rehearing in the case, so that the action would still be pending before the Commission to be passed upon, and he would in that event have no right of appeal. It is clear, therefore, that there was, for the reasons given, no right of appeal when an appeal was attempted, and the Court of Common Pleas was without jurisdiction to hear the cause, and, for that reason, properly excluded the testimony of the claimant. The fact that the Commission filed an answer would make no difference and would not invest the trial court with jurisdiction for the parties themselves could not, by agreement, do so, where none existed. If Worsley really acted upon the advice of the local representatives of the Commission and his rights suffered in consequence, it would seem that in all fairness a way should be found to fairly and fully determine his rights. Refinement of technicality was never intended nor does not have a place in the Workmen’s Compensation Law. However, the right to a rehearing is provided by the law itself, while a reconsideration is a matter within the discretion of the commission and is rather informal, consequently it follows that in the somewhat peculiar situation of the instant case the judgment of the Court below must be affirmed.

(Pollock and Roberts, JJ., concur.)