Opinion
No. 17236
Decided February 8, 1974.
Workmen's Compensation — Appeal to court — R. C. 4123.519 — Notice of appeal — Requirements satisfied, how.
A notice of appeal filed, under R. C. 4123.519, with the administrator of the Bureau of Workmen's Compensation and the Court of Common Pleas does not comply with the mandatory requirement that such notice be filed with the Industrial Commission and the Court of Common Pleas.
Mr. E. L. Jermann, for appellant.
Mr. Lester S. Hallett, for appellee Wyse.
Messrs. Moan Raker and Mr. A. F. Raker, for appellee Midwest Coal Transport, Inc.
Mr. William Naperstick, for appellee administrator of the Bureau of Workmen's Compensation.
On defendant's motion to dismiss for failure to perfect appeal.
On May 16, 1973, the regional board of review of the Bureau of Workmen's Compensation denied the claimant the right to participate in the Workmen's Compensation Fund. An application for leave to appeal to the Industrial Commission was filed on May 30, 1973, denied on July 3, 1973, and appellant notified on July 5, 1973.
Notice of appeal to this court and a complaint in appeal were filed on August 24, 1973. Summons and copies of the notice in appeal and complaint were sent by certified mail to all defendants, including the defendant Anthony J. Stringer, administrator, Bureau of Workmen's Compensation. On September 14, 1973, the certified mail directed to the defendant Stringer was returned, marked "unclaimed," and on the same date a letter advising of the failure of service was mailed to the claimant's attorney. On September 27, claimant's attorney filed a request to "Please serve Mr. Stringer by regular mail," and on the same date an alias summons was issued and mailed in accordance with counsel's instructions.
There has been considerably more activity in this case, but the foregoing summary is sufficient for the determination of defendant's motion to dismiss.
The answer to the question here posed is found in R. C. 4123.519, the pertinent parts of which read:
"* * * Notice of * * * appeal shall be filed by the appellant with the [industrial] commission and the Court of Common Pleas within sixty days after the date of the receipt of the decision appealed from * * *. Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court.
"* * *
"The administrator of the Bureau of Workmen's Compensation, the claimant, and the employer shall be parties to such appeal * * *.
"* * *
"Upon receipt of notice of appeal the commission shall cause notice to be given to all parties who are appellees."
The Legislature has created both the right and the remedy. R. C. Chapter 4123. Without the Act creating it, no right on the part of an injured party to participate in the state insurance fund would exist. Nor would there have been the concomitant right of appeal from a denial of such right. The rights and remedies, being creatures of statute, must be strictly construed. For the court to hold that service upon the administrator of the Bureau of Workmen's Compensation satisfied the legislative requirement of service upon the Industrial Commission would be a glaring example of judicial legislation.
The service failed and the appellant's appeal must fail for lack of jurisdiction in this court. Davidson v. Keller (1967), 9 Ohio App.2d 340, 224 N.E.2d 538.
But still another ground exists for sustaining defendant's motion. Even if the service were properly made, it was not timely made. Service was not completed before the regular mail service of September 27, 1973, which date was after the expiration of sixty days from the date of the order appealed from. But the appellant argues that this second service must be given retroactive effect to the date of the original certified mail service.
Civil Rule 4.6(D), provides in part: "* * * Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. * * *" The "fact of mailing" referred to in the rule is the mailing of the ordinary mail envelope and not the mailing of the original certified mail envelope. Service, then, was not complete until September 27, 1973, which was not within the statutory sixty-day period during which the appeal must have been perfected.
The case of Golubich v. Flowers, Adm'r. (1971), 29 Ohio App.2d 280, 281 N.E.2d 200, relied upon by the appellant, can be distinguished from the instant case in one important respect. In Golubich, the appellant sought to serve the Industrial Commission of Ohio, in accordance with the statute, and not, as in the instant case, the administrator of the Bureau of Workmen's Compensation, and did, in fact, make service upon an office of said commission.
Counsel will file an entry sustaining the defendant's motion to dismiss and dismissing the appeal at appellant's costs.
Motion to dismiss sustained.