Summary
In Dodson, the claimant, on June 12, 1964, sustained an accidental injury to her left knee and contusion of the right shoulder.
Summary of this case from Hospitality Motor Inns. v. GillespieOpinion
No. 78-469
Decided June 20, 1979.
Workers' compensation — Disallowance of disability claim — Appeal to court — Order not appealable, when.
APPEAL from the Court of Appeals for Franklin County.
On June 12, 1964, appellant, Elizabeth S. Dodson, sustained an accidental injury to her left knee and contusion of her right shoulder and arm while in the course of her employment with National Acme Company. Appellant filed a claim with the Bureau of Workers' Compensation and was paid temporary total disability compensation. On December 1, 1967, the Industrial Commission (commission) determined that appellant had a 15 percent permanent partial disability.
On June 18, 1971, appellant filed an application for an amendment to her claim alleging that she suffered from hypertrophic arthritis in her left knee and right shoulder prior to and aggravated by the accidental injury which occurred in 1964. This application was subsequently allowed by the commission. National Acme Company appealed to the Court of Common Pleas of Cuyahoga County, which entered judgment on February 21, 1975, overruling the commission and finding that the prior allowed injury did not aggravate any pre-existing condition of hypertrophic arthritis of the left knee or right shoulder.
On March 1, 1977, the commission, acting on appellant's motion for permanent and total disability filed December 24, 1973, found "that the claimant [appellant] is permanently and totally disabled but not as the result of the allowed injuries in this claim * * *."
On April 26, 1977, appellant filed an appeal in the Court of Common Pleas of Cuyahoga County, pursuant to R.C. 4123.519.
R.C. 4123.519 provides as follows:
"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 of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state."
In December 1977, appellant filed a complaint in mandamus in the Court of Appeals for Franklin County seeking to compel the commission to vacate its order of March 1, 1977, and to find that appellant was permanently and totally disabled.
National Acme Company filed a motion to dismiss the complaint in mandamus for failure to state a claim, in that appellant's filing of her statutory appeal with the Court of Common Pleas on April 26, 1977, constitutes a plain and adequate remedy in the ordinary course of the law.
The Court of Appeals sustained National Acme's motion and dismissed appellant's complaint without prejudice.
This cause is now before this court upon appeal as a matter of right.
Edward J. Cox Co. L.P.A., Mr. Edward J. Cox, Sr., Bustamante, Donohoe Palmisano Co., L.P.A., Mr. John H. Bustamante and Mr. Harry R. Paulino, for appellant.
Mr. William J. Brown, attorney general, and Mr. Solomon Hertzel Basch, for appellee Industrial Commission.
Messrs. Thompson, Hine Flory, Mr. Arthur F. Zalud and Mr. Matthew J. Hatchadorian, for appellee National Acme Co.
The sole issue before this court is whether the pending appeal filed by appellant in the Court of Common Pleas constitutes a plain and adequate remedy and, thus, precludes the Court of Appeals from entertaining appellant's complaint in mandamus. State, ex rel. Niles, v. Bernard (1978), 53 Ohio St.2d 31, 33.
In paragraph one of the syllabus in Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, this court held the following:
"An order of the Industrial Commission which either denies or allows a claimant the right to participate in the Workers' Compensation Fund for injury to a specific part or parts of the body involving loss or impairment of bodily functions on the basis that such was or was not the result of a compensable injury, is a decision other than one as to the extent of disability and, thus, pursuant to R.C. 4123.519, may be appealed to the Court of Common Pleas by the claimant in the event of such a denial, or by the employer in the event of such an allowance." (Emphasis added.)
The commission's finding in the instant cause was not a denial of appellant's right to participate in the Workers' Compensation Fund. The issue before the commission was limited to whether, considering those disabilities which had been allowed, appellant was permanently and totally disabled. This is evident upon the face of appellant's motion for permanent and total disability, which reads as follows:
"Now comes the Claimant [appellant], Elizabeth S. Dodson, and moves the Industrial Commission for an order declaring her to be permanently and totally disabled as a direct result of her injury dated June 12, 1964." (Emphasis added.)
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.
Filing an appeal from a commission order which is not appealable is a futile act, and can not constitute a plain and adequate remedy in the ordinary course of the law.
Accordingly, the judgment of the Court of Appeals sustaining the motion to dismiss is reversed and the cause is remanded to that court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.