Summary
In Ford Motor Co. v. Mosijowsky, supra (44 Ohio St.2d 109), the claim had originally been allowed by the administrator for a minor non-disabling contusion to the left shoulder and left scapular region, but disallowed as to subsequent developing low back disability and neurosis of the conversion type reaction.
Summary of this case from Zavatsky v. StringerOpinion
No. 75-162
Decided December 10, 1975.
Workmen's compensation — Allowance of claim — Appeal by employer to Common Pleas Court — Does not lie, when — Order a determination as to extent of disability.
APPEAL from the Court of Appeals for Lorain County.
In 1964, Marion Mosijowsky filed a claim, with the Deputy Administrator of the Bureau of Workmen's Compensation, alleging that he had sustained shoulder and low-back injuries in an industrial accident in the course of his employment with Ford Motor Company, appellant herein. The claim was disallowed by the Industrial Commission.
Upon claimant's appeal to the Court of Common Pleas of Lorain County, judgment was returned in his favor entitling him to participate in the Workmen's Compensation Fund. The Court of Appeals affirmed, and appellant's motion to certify was overruled by this court.
Pursuant to R.C. 4123.519, the judgment was certified to the Industrial Commission, and, on September 25, 1972, the deputy administrator allowed the claim and ordered that compensation for temporary total disability and medical bills be paid to claimant. That order was affirmed by the board of review, and the Industrial Commission refused a further appeal.
Appellant's appeal to the Court of Common Pleas was dismissed on April 24, 1974. The Court of Appeals affirmed, stating:
"* * * the [September 25, 1972] order made by the deputy administrator is one concerned solely with the `extent of disability' and, therefore, is not appealable to the Court of Common Pleas pursuant to R.C. 4123.519."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
messrs. Squire, Sanders Dempsey, Mr. Lee E. Larson and Mr. Robert H. Gillespy, for appellant.
Lee S. Kolczun Co., L.P.A., Mr. Lee S. Kolczun, Mr. Joseph J. Ujhelyi and Mr. John D. Kozich, Jr., for appellee claimant.
Mr. William J. Brown, attorney general, for appellee Administrator, Bureau of Workmen's Compensation.
The issue before us is whether the relevant provisions of R.C. 4123.519 allow an appeal from the September 25, 1972, order of the deputy administrator as affirmed by the board of review.
In a recent case, State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 280, this court restated its holding that "* * * where the commission's order constitutes a finding as to the extent of disability, an appeal is unavailable and mandamus is proper to test the commission's exercise of its discretion."
Interpreting the pertinent language of R.C. 4123.519, this court has consistently held that "an order constituting a denial that is absolute and which goes to the basis of claimant's right to participate in the fund is not a `decision as to the extent of disability,' and is appealable * * *." State, ex rel. General Motors Corp., supra, at page 280, and cases cited therein.
R.C. 4123.519 provides:
"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 the case at bar, however, the September 25, 1972, order of the deputy administrator, allowing the claim and compensating claimant for temporary total disability, "* * * 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." State, ex rel. General Motors Corp., supra, at page 281. Therefore, an appeal does not lie from the order of the deputy administrator herein.
In so holding, it is not necessary to decide appellant's other propositions of law.
Accordingly, the judgment of the Court of Appeals disallowing the appeal is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.