Opinion
No. 39983
Decided June 1, 1966.
Workmen's compensation — Claim denied by Industrial Commission — Appeal to Common Pleas Court — Judgment establishing claimant's right to participate, certified to commission — Duty of commission to award compensation — Mandamus available to require commission to comply with judgment.
1. Where a claimant applies for workmen's compensation on account of a particular injury he alleges he sustained in an accident arising out of and in the course of his employment by an employer amenable to the workmen's compensation law, such claim is denied by the Industrial Commission, an appeal is then taken by the claimant to the Court of Common Pleas from such denial, he recovers a favorable verdict and judgment establishing his right to participate in the State Insurance Fund, and such judgment is certified to the Industrial Commission, it thereupon becomes the duty of the commission to award some compensation on the basis of the judgment rendered.
2. Upon the commission's failure to do so, the claimant may institute an action in mandamus against the commission in the Court of Appeals to require the commission to act affirmatively and favorably on the certified judgment of the Court of Common Pleas, and if the Court of Appeals assumes jurisdiction, hears the matter and decides for the claimant-relator, it may properly issue a writ directing the commission to comply with the judgment of the Court of Common Pleas.
APPEAL from the Court of Appeals for Franklin County.
This action in mandamus originated in the Court of Appeals for Franklin County with Richard J. Davey as relator and the Industrial Commission of Ohio and others as respondents. The object of the action is to require the commission to make a finding determining Davey's disability due to an alleged neck injury he sustained in an industrial accident on October 16, 1957, when he was employed by the General Motors Corporation at its Ternstedt Division. In the claim before the commission involving the accident of October 16, 1957, Davey was granted compensation for injury to his right arm and shoulder but was denied compensation for a claimed aggravation of a prior neck disability.
From such denial of compensation for the claimed aggravation of the neck injury, an appeal was taken to the Court of Common Pleas of Franklin County, where a jury rendered its verdict in favor of Davey's right to participate in the State Insurance Fund. Judgment was rendered on such verdict, with a certification thereof to the commission.
Thereafter, an examination of Davey was made by a staff physician, and upon his recommendation, based upon observation and Davey's history, the commission entered an order finding that Davey had no percentage of permanent partial disability, and that, therefore, no basis existed for a compensation award for that type of disability, and that the application for the determination of the percentage of permanent partial disability be granted to the extent of such order. An application for reconsideration was denied. Consequently, Davey has received no allowance from the commission.
This action in mandamus was then instituted in the Court of Appeals. That court found mandamus to be a proper remedy, and judgment was rendered for Davey, followed by the issuance of a writ of mandamus ordering the Industrial Commission to make a finding as to the extent of disability resulting from the injury to Davey's neck and to award compensation in accordance with law.
An appeal as of right brings the cause here for determination on the merits.
Mr. A. Millard Armstrong, for appellee.
Mr. William B. Saxbe, attorney general, Mr. Donald M. Colasurd, Mr. William M. Culbert, Messrs. Vorys, Sater, Seymour Pease and Mr. Fred G. Preston, for appellants.
Two questions suggest themselves: (1) Was mandamus in the Court of Appeals an appropriate and available remedy? and (2) was the writ properly issued?
As a result of the industrial accident to Davey on October 16, 1957, the Industrial Commission awarded him compensation for an arm and shoulder injury. But his claim filed with the commission included the aggravation of a prior neck disability growing out of the same accident, and the commission denied him compensation for that. It was from and because of such denial that Davey prosecuted his appeal to the Court of Common Pleas. There is no question that the neck injury was the issue for determination on the appeal, and that this was the main issue involved. According to the allegations of the petition in mandamus and the admissions in the answers of the intervening respondent, the Ternstedt Division of General Motors, and the respondents, Elmer A. Keller, Administrator of the Bureau of Workmen's Compensation, and the Industrial Commission, the Court of Common Pleas on the appeal charged the jury as follows:
"I say to you that if you find from a preponderance of the facts in evidence that the plaintiff sustained an injury to his neck or to the cervical region of his back while in the course of and arising out of his employment with General Motors on October 16, 1957, and such injury proximately aggravated, or accelerated any pre-existing neck or cervical condition of the plaintiff and that the aggravation or acceleration, if any you find, proximately caused, contributed to, or hastened, in a substantial degree, the neck or cervical disability of the plaintiff, your verdict should be for the plaintiff."
The verdict and judgment in favor of Davey in the Court of Common Pleas established his right to participate in the State Insurance Fund on the basis of a neck injury, and on certification of the judgment to the Industrial Commission that agency was faced with a mandate to allow compensation for such an injury. A refusal to comply amounted to a defiance of the favorable verdict and judgment secured by Davey in the Court of Common Pleas, and Davey found himself completely frustrated. If Davey had again appealed to the Court of Common Pleas, as respondents assert he should have done, and he had again been successful there, the Industrial Commission might well take the same attitude it did in the first instance, and Davey would again be completely stymied.
Large discretion rests with the Court of Appeals as to whether it will entertain an action in mandamus, and when it does assume jurisdiction and acts, even though an adequate remedy at law may exist, such action cannot be successfully challenged and will stand. State, ex rel. Shoeman, v. Deuber et al., Barberton Civil Service Comm., 175 Ohio St. 357, 358, 195 N.E.2d 110, 111.
Here, the Court of Appeals did assume jurisdiction and issued a writ to the Industrial Commission, requiring it to recognize Davey's neck injury and to award compensation therefor. A majority of this court is of the opinion that in the circumstances the judgment of the Court of Appeals is correct, and that the Industrial Commission must recognize it and be governed thereby.
Of course, "mandamus will not lie to control the discretion of the Industrial Commission with respect to an award of compensation; but the writ will lie to compel the performance of a duty specially enjoined by law where failure to perform the duty results from abuse of discretion, violation of law or otherwise." Copperweld Steel Co. v. Industrial Commission, 142 Ohio St. 439, 52 N.E.2d 735, paragraph three of the syllabus.
Section 4123.519, Revised Code, recites in part:
"If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate in the fund, the commission and the administrator shall thereafter proceed in the matter of the claim as if such judgment were the decision of the commission, subject to the power of modification provided by Section 4123.52 of the Revised Code."
We think that the judgment of the Court of Appeals finds support in the second paragraph of the syllabus of State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572, which reads:
"A verdict and judgment so entered and certified to the Industrial Commission do not impose upon the Industrial Commission a duty to pay compensation to any particular future date or for any particular extent of disability; it becomes the duty of the commission upon receiving such certificate to recognize the verdict and judgment as awarding some disability and to proceed to inquire the extent of such disability."
And, see the fourth paragraph of the syllabus of State, ex rel. Moore, v. Industrial Commission, 141 Ohio St. 241, 47 N.E.2d 767, reading as follows:
"Where a Court of Common Pleas finds and certifies to the Industrial Commission of Ohio that a claimant has the right to participate in the State Insurance Fund, the commission is bound to award some compensation or benefit."
In State, ex rel. Waller, v. Industrial Commission, 142 Ohio St. 193, 195, 51 N.E.2d 643, 644, the statement is made:
"Therefore, where, upon hearing on appeal, a Common Pleas Court finds and certifies to the Industrial Commission that a claimant has a right to participate in the State Insurance Fund, it becomes the duty of the commission to award some compensation or benefit."
How the Industrial Commission may respond to the judgment of the Court of Appeals remains to be seen. It must now be assumed that pursuant to such judgment it will act in good faith and not in an unreasonable, arbitrary or defiant manner. However, it must take some affirmative and favorable action to comply with the certified judgment of the Court of Common Pleas, which established that Davey suffered a neck injury in the industrial accident of October 16, 1957.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
Dissents on the basis of the dissenting opinion in Keels v. Chapin Chapin, Inc., 5 Ohio St.2d 112, at page 114.