Opinion
No. 36819
Decided April 26, 1961.
Prohibition — Writ not available as substitute for injunction — Workmen's compensation — Suit to restrain commission from granting awards after ten-year period.
IN PROHIBITION.
This action in prohibition, originating in this court, was brought by an employer and contributor to the State Insurance Fund to restrain respondents, the Industrial Commission and the members thereof, from proceeding further in an occupational disease claim of one of relator's employees. The case has been submitted on the petition, answer, reply, and an agreed statement of facts.
The employee contracted an occupational disease in the course of his employment, applied for workmen's compensation and was allowed compensation for temporary total disability for a specified time. Compensation and medical expenses were paid. No further applications for compensation were filed by the employee with respect to the claim and no further orders with respect thereto were made by the Bureau of Workmen's Compensation or the commission until more than ten years after such payment of compensation and medical expenses, when the employee filed an application for additional compensation beyond the date of last payment.
However, during such ten-year period a physician filed an "attending physician's fee bill" for treatments for the occupational disease, claimed to have been administered to the employee during such ten-year period, but no hearings were had, orders issued, or payments made with respect to the physician's fee bill prior to the filing by the employee of his application for additional compensation.
The employee's application for additional compensation was denied because it was not filed until more than ten years had elapsed after the last payment of compensation and benefits.
The Industrial Commission found that the "attending physician's fee bill" above referred to was filed within the ten-year statutory period provided in Section 4123.52, Revised Code, and that the administrator of the bureau and the commission have jurisdiction to consider the bill and ordered that it be paid and that medical bills filed subsequent to such bill be paid as approved.
The prayer of the petition is for a writ restraining respondents from proceeding further in the matter and from proceeding with the consideration of any application for or payment of any award or medical expenses on the claim out of the occupational disease fund and from granting any orders or awards in respect thereto.
Messrs. Day, Cope, Ketterer, Raley Wright, Mr. Robert M. Rybolt and Mr. John F. Buckman, III, for relator.
Mr. Mark McElroy, attorney general, and Mr. William G. Carpenter, for respondents.
Relator has not stated a cause of action in prohibition. The extraordinary remedy of prohibition ordinarily may not be employed where there is an adequate remedy in the ordinary course of the law.
Reference was made in argument to Section 4123.21, Revised Code, a part of the Workmen's Compensation Act. That section reads in part:
"No injunction shall issue suspending or restraining any order, classification, or rate adopted by the Industrial Commission * * *."
Although that section does forbid injunctive relief against the commission in certain matters, it does not apply to functions of the Industrial Commission relating to workmen's compensation claims.
Relator is afforded an adequate remedy in the ordinary course of the law by way of injunction. State, ex rel. Cotleur, v. Board of Education of Cleveland Heights School District, 171 Ohio St. 335.
The writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.