Summary
In State ex rel. McKim v. Hobart Corp. (1991), 58 Ohio St.3d 99, 568 N.E.2d 670, we unanimously rejected an employee-claimant's request for a writ of mandamus to compel the commission to grant her permission to depose a doctor.
Summary of this case from State ex Rel. Kmart Corp. v. FrantomOpinion
No. 90-67
Submitted November 27, 1990 —
Decided March 20, 1991.
Appellate procedure — Final order — Interlocutory discovery order — Mandamus cannot be used as a substitute for appeal or to create an appeal from an order that is not final.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-254.
Appellant, LaVerne McKim, was injured in 1973 while in the course of and arising from his employment with appellee Hobart Corporation, a self-insured employer. In 1985, after being declared permanently and totally disabled, appellant sought payment from Hobart of $40 per day for his wife's care of him beginning January 1, 1982. The matter eventually was heard by a district hearing officer of the appellee Industrial Commission of Ohio ("commission"), who referred the claim to the commission's medical section for an opinion on appellant's request.
Following a commission nursing services evaluation and home interview with appellant and his wife, appellant's workers' compensation claim was forwarded to Dr. William R. Beery for review. Dr. Beery reported that appellant required his wife's monitoring because of appellant's allowed psychiatric condition. Dr. Beery recommended reimbursement not to exceed ten dollars per day.
A district hearing officer issued an order that adopted Dr. Beery's recommendation and ordered reimbursement beginning January 6, 1986. Both appellant and Hobart appealed.
On January 21, 1987, prior to a regional board of review hearing on the appeals, Hobart moved the commission for permission to depose Dr. Beery pursuant to Ohio Adm. Code 4121-3-09(B)(5)(a). A district hearing officer granted Hobart's request. Appellant unsuccessfully appealed to the regional board and the commission.
Appellant filed a complaint in mandamus in the Franklin County Court of Appeals, alleging that the commission improperly granted Hobart's deposition request. The appellate court denied the writ.
This cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Thompson, Hine Flory, Theodore E. Laszlo and Michelle LaFond Potter, for appellee Hobart Corporation.
Lee I. Fisher, attorney general, and Peter E. DeMarco, for appellee Industrial Commission.
Appellant seeks a writ of mandamus from what is essentially an interlocutory discovery order. Mandamus, however, does not lie from such orders. State, ex rel. Sobczak, v. Skow (1990), 49 Ohio St.3d 13, 550 N.E.2d 455.
For the reason stated above, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.