Gobel v. Industrial Accident Commission

THE COURT.

By this application the petitioner seeks to have this court review and annul the action of the respondent commission in dismissing for an asserted lack of jurisdiction a petition to reopen and to adjust a claim based on an alleged new and further disability in the nature of permanent disability resulting from the original accident for which petitioner has already received an award for temporary total disability. The dismissed petition was filed with the commission two days before the expiration of 245 weeks from the date of the accident.

It appears that petitioner on September 3, 1928, and while acting in the course and scope of his employment for the Thompson Paint and Glass Company, slipped and fell to the ground from a window-sill on the fifth floor of a building and was severely injured. Compensation benefits and necessary medical services were furnished by the employer and its insurance carrier until May 9, 1929.

Petitioner thereafter, and on August 22, 1930, made application to the respondent commission for an adjustment of his claim for compensation for temporary disability resulting from the accident. Upon hearing had the commission on November 19, 1930, found, in substance, that petitioner had suffered temporary total disability from the date of the accident on September 3, 1928; that the employer and the insurance carrier had paid all compensation and furnished all necessary medical treatment during that period; and that the evidence failed to show that petitioner suffered any disability subsequent to May 9, 1929, by reason of the accident. It was therefore ordered that petitioner take nothing. No petition for a review was filed.

Thereafter and on May 13, 1933, and within two days of the expiration of 245 weeks from the date of injury, the

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petitioner filed a petition with respondent commission to reopen the case and to make an award of compensation upon the ground that the original injury had caused “new and further disability”. The commission gave notice of its intention to dismiss this proceeding and on July 3, 1933, made its order dismissing the same on the ground that sufficient time did not remain to permit of reasonable notice and hearing before expiration of the 245-week period. Application for a rehearing was denied and this proceeding was thereupon commenced. The sole question involved is whether the commission rightfully refused to take jurisdiction and consider an application for an award based on alleged new and further disability when the application therefor was filed within the 245-week period of limitation, but at a time when, in its opinion, there was no opportunity to give reasonable notice of, and to hold a hearing on the application within, the 245-week period.