Opinion
No. 90-2013
Submitted December 3, 1991 —
Decided March 18, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-988.
Appellant-claimant, Jimmy L. Thompson, was injured on March 7, 1980 while in the course of and arising from his employment with appellee, United Telephone Company of Ohio ("UTC"). During the next six years, claimant received no disability compensation. On August 29, 1986, claimant applied for partial disability compensation under former R.C. 4123.57. A commission district hearing officer found an eighteen percent permanent partial disability.
UTC sought reconsideration of the permanent partial disability order. On reconsideration, a commission staff hearing officer questioned whether claimant's partial disability application was barred by R.C. 4123.52's six-year statute of limitations. The hearing officer reset the claim for hearing to determine whether claimant had received wages in lieu of compensation so as to toll the statute of limitations.
Two months later, claimant requested temporary total disability compensation from May 1, 1985 through August 2, 1986. Pursuant to the earlier staff hearing officer order, the statute of limitations question was also considered. The commission ultimately denied temporary total disability compensation, finding that the claim was barred by the six-year statute of limitations.
Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in finding that the statute of limitations had run. The court of appeals, however, held that the commission's decision involved claimant's right to continued participation in workers' compensation benefits and was appealable under R.C. 4123.519.
This cause is now before this court upon an appeal as of right.
Lancione Law Offices and David Lancione, for appellant.
Vorys, Sater, Seymour Pease and Robert A. Minor, for appellee United Telephone Company of Ohio.
Lee I. Fisher, Attorney General, and Peter E. DeMarco, for appellee Industrial Commission.
Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, declared appealable under R.C. 4123.519 only those decisions involving the claimant's right to participate in workers' compensation benefits. Having concluded in the matter currently before us that the right to participate is involved, we affirm the judgment below.
R.C. 4123.52 provides:
"* * * No * * * finding or award in * * * any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation * * * under section 4123.56 of the Revised Code, or wages in lieu of compensation * * * except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code * * *."
Under R.C. 4123.52, a claimant's right to continued participation in workers' compensation benefits ceases if disability compensation or wages in lieu thereof are not paid within six years after the date of injury. In this case, the commission found that no compensation or wages had been paid, effectively foreclosing further workers' compensation participation.
Contrary to claimant's representation, the right to participate/statute of limitations question must be resolved before any inquiry can be made into the merits of claimant's compensation request. Obviously, if claimant no longer may receive any workers' compensation benefits, the presence of "some evidence" supporting temporary total disability is immaterial.
Claimant's reliance on Felske v. Daugherty (1980), 64 Ohio St.2d 89, 18 O.O.3d 313, 413 N.E.2d 809, is misplaced. Claimant correctly notes that Felske and the present case involve substantially the same merit question. Felske, however, was not brought in mandamus but was instead before us pursuant to the allowance of a motion to certify the record. Felske does not, therefore, support claimant's assertion that this action is properly before the court in mandamus.
For these reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.
The majority opinion states, in part, that "[t]he commission ultimately denied temporary total disability compensation, finding that the claim was barred by the six-year statute of limitations." (Emphasis added.) This was a determination of the Industrial Commission pursuant to R.C. 4123.52. The question is one of commission jurisdiction and does not have a thing to do, at this stage of the proceedings, with the claimant's "right to participate." Accordingly, the decision of the commission is not one that is appealable under R.C. 4123.519. See Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175; and State, ex rel. Superior's Brand Meats, Inc., v. Indus. Comm. (1992), 63 Ohio St.3d 277, 285, 586 N.E.2d 1077, 1083-1084 (Douglas, J., concurring in part and dissenting in part).
Even the majority makes the point when it says that "[c]ontrary to claimant's representation, the right to participate/statute of limitations question must be resolved before any inquiry can be made into the merits of claimant's compensation request. * * *" (Emphasis added.) If, as according to the majority opinion, the inquiry is not into the merits of claimant's claim for benefits, then the appeal cannot lie under R.C. 4123.519.
Accordingly, I must respectfully dissent.
SWEENEY, J., concurs in the foregoing dissenting opinion.