Opinion
No. 74-1074
Decided June 4, 1975.
Workmen's compensation — Award of ten percent disability — Subsequent award of temporary total disability — A decision as to extent of disability — Appeal not available — Mandamus available.
APPEAL from the Court of Appeals for Franklin County.
On August 22, 1966, an employee of Commercial Motor Freight suffered a back injury in the course of his employment, for which he was awarded ten percent permanent partial disability. Subsequently, claimant's motion for an award for aggravation of a pre-existing personality disorder and conversion reaction precipitated by his injury was allowed. Commercial appealed to the Court of Common Pleas of Montgomery County. That appeal is still pending (case No. 137137).
On February 26, 1973, claimant filed a motion for temporary total disability, which was denied on July 10, 1973, for lack of sufficient medical proof. An appeal to the board of review resulted in a reversal of such denial and an award of temporary total disability on December 20, 1973. Commercial's appeal to the Industrial Commission was refused, and its appeal to the Court of Common Pleas of Montgomery County was dismissed on motion of the administrator.
The date appearing on the order is December 20, 1974. This is an obvious error. It will be referred to herein as the December 20, 1973, order.
Commercial Motor Freight then brought the instant action in mandamus in the Court of Appeals for Franklin County to vacate the Industrial Commission's allowance of temporary total disability benefits.
The Industrial Commission's motion to dismiss on the ground that the court was without jurisdiction to issue a writ of mandamus, because relator had a plain and adequate remedy in the ordinary course of the law by appeal, was sustained, and the Court of Appeals dismissed the action, holding that "the decision of the Industrial Commission, which is the subject of this action, is `other than a decision as to the extent of disability.' R.C. 4123.519, therefore, would appear to afford a remedy by way of appeal. Respondents' brief indicates that relator has pursued its remedy of appeal. Mandamus is not a proper remedy where there is an adequate remedy by way of appeal."
In their motion to dismiss, respondents assert that "relator has a plain and adequate remedy in the ordinary course of the law: pursuance of its appeal in Montgomery County Court of Appeals [ sic] Case number 137137," which is the case pending in the Montgomery County Common Pleas Court.
The cause is now before this court on an appeal as a matter of right.
Mr. Willim C. Buckham, for appellant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey and Mr. James R. Rishel, for appellees members of the Industrial Commission.
Commercial Motor Freight argues that the December 20, 1973, order granting claimant temporary total disability was an order going to the extent of disability and not appealable under R.C. 4123.519. Therefore, appellant contends, mandamus was available because it had no plain and adequate remedy in the ordinary course of the law.
R.C. 4123.519.
"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. * * *"
This court agrees. In the recent case of State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, an employee who suffered a back injury in the course of his employment and was again injured in a work-related incident, filed a motion for permanent total disability, which was allowed. The employer then filed a mandamus action in the Court of Appeals seeking to have the order allowing permanent total disability vacated. The Court of Appeals held that General Motors had a plain and adequate remedy in the ordinary course of the law by way of appeal and denied the writ of mandamus. Upon appeal, this court held that the decision of the commission "finding claimant permanently and totally disabled clearly was not an absolute denial of claimant's right to participate in the fund, but was a determination as to the extent of disability. Therefore, an appeal did not lie and appellant's only available remedy was an original action in mandamus."
The judgment of the Court of Appeals was, however, affirmed for the reason that "that court correctly found that the record supports the commission's factual determination."
In this case, the December 20, 1973, order allowing benefits for temporary total disability was clearly a determination as to the extent of disability. Claimant's right to participate in the fund had previously been established. Hence, the order allowing temporary total disability was not appealable, and Commercial Motor Freight's only available remedy was an original action in mandamus.
Accordingly, on authority of State, ex rel. General Motors Corp., v. Indus. Comm., supra, the judgment of the Court of Appeals, dismissing Commercial Motor Freight's action in mandamus, is reversed, and the cause is remanded to that court for a hearing on the merits of relator's complaint in mandamus.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.