Summary
In Smith v. Krouse (1978), 54 Ohio St.2d 369, 370, this court held that an "order of the commission finding appellant to be permanently and totally disabled `but not due to the [prior] allowed injury'" is not appealable to the Court of Common Pleas under R.C. 4123.519.
Summary of this case from State, ex Rel. Dodson, v. Indus. CommOpinion
No. 77-1269
Decided June 21, 1978.
Workers' compensation — Appeal — Commission's order involves only extent of continued participation in fund — Not absolute denial of claim — Not appealable order — R.C. 4123.519.
CERTIFIED by the Court of Appeals for Fairfield County.
In 1971, Ada B. Smith, appellant herein, suffered an injury in the course of her employment with the Lancaster Potato Chip Company. Thereafter, appellant filed a claim with the Bureau of Workers' Compensation and was awarded benefits for "low back strain; multiple contusions." In 1973, the Industrial Commission found appellant to be 20 percent permanent partially disabled and, in January 1976, the commission found that appellant's permanent partial disability was 100 percent.
On March 2, 1976, appellant filed a motion seeking a determination by the Industrial Commission that she is permanently and totally disabled. The commission denied the motion, stating in its order: "That the Commission finds from proof of record that the claimant is permanently and totally disabled but not due to the allowed injury in this claim * * *."
Appellant appealed the order of the commission to the Court of Common Pleas. That court sustained a motion to dismiss for the reasons that "appellant has participated and continues to participate in the Workmen's Compensation Fund" and that the order of the commission is a "`decision as to the extent of disability,'" and not appealable pursuant to R.C. 4123.519.
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The Court of Appeals found its judgment to be in conflict with a judgment rendered upon the same question by the Court of Appeals for Franklin County in Wentzell v. Columbus Bolt Forging Co. (1961), 112 Ohio App. 552, 176 N.E.2d 866, and certified the record of the case to this court for review and final determination.
Messrs. Clayman Jaffy, and Mr. Stewart R. Jaffy, for appellant.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee.
The issue presented in this appeal is whether the order of the commission finding appellant to be permanently and totally disabled "but not due to the [prior] allowed injury" constitutes an appealable order.
R.C. 4123.519 provides, in part:
"The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas * * *."
In a series of cases interpreting R.C. 4123.519, it has been held that "* * * it is an order constituting a `denial that is absolute going to the basis of claimant's right' that is appealable." Reeves v. Flowers (1971), 27 Ohio St.2d 40, 43, 271 N.E.2d 769; State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775; State, ex rel. Campbell, v. Indus. Comm. (1971) 28 Ohio St.2d 154, 277 N.E.2d 219; State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 328 N.E.2d 387; State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St.2d 389, 329 N.E.2d 102; State, ex rel. General Motors, v. Indus. Comm. (1975), 44 Ohio St.2d 46, 337 N.E.2d 782; Ford Motor Co. v. Mosijowsky (1975), 44 Ohio St.2d 109, 338 N.E.2d 762; Mooney v. Stringer (1976), 48 Ohio St.2d 375, 358 N.E.2d 612.
Inasmuch as appellant's right to participate in the fund has been established, " ** * the case at bar involves only the extent to which * * * [appellant] may continue to participate in the Workmen's Compensation Fund under an allowed claim." It "does not concern" an "absolute denial of a claim going to the basis of * * * [appellant's] right to participate, or to continue to participate, in the * * * Fund." State, ex rel. Campbell, supra, at page 156. Thus, the order of the commission is not appealable to the Court of Common Pleas under R.C. 4123.519.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.