State, ex Rel. Shewalter v. Ind. Comm

Full title: THE STATE, EX REL. SHEWALTER, v. INDUSTRIAL COMMISSION OF OHIO

Court: Court of Appeals of Ohio

Date published: Dec 17, 1968

17 Ohio App. 2d 153 (Ohio Ct. App. 1968)

244 N.E.2d 788

Opinion

No. 8983

Decided December 17, 1968.

Workmen's compensation — Injured workman receiving compensation for partial disability — Compensation for subsequent injury disallowed — Remedy — Mandamus not available — Appeal to Common Pleas Court available — Section 4123.519, Revised Code.

IN MANDAMUS: Court of Appeals for Franklin County.

Mr. Chester T. Freeman, for relator.

Mr. William B. Saxbe, attorney general, Mr. Walter J. Howdyshell and Mr. Robert J. Dodd, Jr., for respondent.

Per Curiam.

In November 1954, relator received an injury to his lower back for which he received compensation from the Industrial Commission for a 50 per cent permanent partial disability. In December 1963, relator was again injured when he slipped and fell. The second injury was distinct from the first. Relator again applied to the Industrial Commission for compensation for a permanent partial disability. He was examined by a specialist, chosen by the Industrial Commission, who concluded that relator had a 20 to 25 per cent disability, equally divided between the two injuries. Another doctor rated his disability at 50 per cent, equally divided between the two injuries.

The Industrial Commission decided that, since relator had received 50 per cent disability already, no additional recovery could be allowed. This decision was clearly in error. The fact that relator's disability may have been compensated for in his first injury claim does not legally justify a disallowance of the compensation indicated by the second injury. See State, ex rel. Dudley, v. Indus. Comm., 135 Ohio St. 121, and State, ex rel. Latino, v. Indus. Comm., 13 Ohio St.2d 103.

However, mandamus is not a proper remedy in this case. The issue involved in the commission's decision does not go to the extent of disability. The commission is denying that compensation is payable for the recognized disability. An appeal under Section 4123.519, Revised Code, is available. Where such an appeal is available and adequate, the injured workman may not maintain an action in mandamus to enforce his claimed rights. State, ex rel. Foley, v. Greyhound Lines (1968), 16 Ohio St.2d 6.

In view of the Foley v. Greyhound case, supra, the writ will have to be denied.

Writ denied.

TROOP, J. (Presiding), DUFFY and HERBERT, JJ., concur.