Summary
In Mooney v. Stringer, supra (48 Ohio St.2d 375), claimant was injured on January 7, 1965, when she backed into a rack and received injuries described by her as a "little scratch and a large bump," and by her doctor as a "small scratch and bruised anterior surface lower 1/3 right lower leg."
Summary of this case from Zavatsky v. StringerOpinion
No. 76-291
Decided December 27, 1976.
Workmen's compensation — Appeal to Common Pleas Court — R.C. 4123.519 — Order not appealable, when — Determination as to extent of disability.
APPEAL from the Court of Appeals for Montgomery County.
Sara P. Mooney, appellee herein, was injured on January 7, 1965, in a plant of appellant, Inland Manufacturing Division of General Motors Corporation (hereinafter, Inland). Appellee suffered from many maladies preexisting that employment injury, each of which caused her legs to swell: Osteoarthritis, chronic pyelonephritis, hyperuricemia, hypertension, obesity, cystitis, and thrombophlebitis. Appellee was hospitalized, apparently for treatment of thrombophlebitis resulting from the employment injury, from February 12, 1965, until March 12, 1965.
Inland accepted appellee's claim for workmen's compensation benefits, paying benefits for medical treatment and for temporary total disability for the six months preceding July 18, 1965. Inland, nevertheless, attributed appellee's disability after July 18, 1965, to one or more of her aforementioned preexisting conditions. Appellee filed an original application for her claim with the Bureau of Workmen's Compensation in early 1966, and one for adjustment of claim on May 26, 1969.
Appellee's claim came on for hearing before the deputy administrator of the Bureau of Workmen's Compensation. On November 18, 1969, the deputy allowed appellee's claim for disability caused by thrombophlebitis, ordered the medical expenses for necessary treatment thereof be paid by Inland, and ordered Inland to compensate appellee for the period of temporary total disability directly related to the thrombophlebitis. The deputy administrator found further that the osteoarthritis, chronic pyelonephritis, cystitis, hyperuricemia, hypertension, and obesity were not related to the allowed injury in that claim, and ordered no compensation or benefits incidental to them. Appellee appealed to the Dayton Regional Board of Review which, on May 28, 1970, found that appellee's temporary total disability and hospitalization since July 19, 1965, were neither the result of nor connected with her work-related disability (thrombophlebitis), and disallowed her claim for osteoarthritis, chronic pyelonephritis, cystitis, hyperuricemia, hypertension, and obesity as being unrelated to the injury upon which the instant claim was founded.
Appellee appealed the order of the board of review to the Court of Common Pleas of Montgomery County, and Inland, by an amended answer, raised a jurisdictional defense alleging that the court could not determine the appeal because it turned upon the extent of disability sustained by appellee through her job injury. The parties had stipulated, in the trial court, that appellee abandoned her claim that the conditions set forth above were causally related to her allowed claim for thrombophlebitis of her right leg. Inland's motions to dismiss the appeal were overruled. The trial resulted in a verdict in favor of appellee.
Inland appealed to the Court of Appeals and the judgment of the trial court was affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
E.S. Gallon Co., L.P.A., and Mr. David M. Deutsch, for appellee.
Mr. William J. Brown, attorney general, and Mr. Robert L. Holder, for defendant-appellee, administrator, Bureau of Workmen's Compensation.
Messrs. Smith Schnacke and Mr. Samuel A. McCray, for appellant.
The question presented by this appeal is whether, pursuant to R.C. 4123.519, the May 28, 1970, decision of the Dayton Regional Board of Review can be appealed to a Common Pleas Court. R.C. 4123.519 provides, in pertinent part:
"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. * * *"
"The large number of cases decided by this court determining what is included within the `extent of disability,' as those words are used in Section 4123.519, Revised Code, attests to the fact that in the galaxy of decisions of the Industrial Commission some do not easily come to rest in assigned legal grooves." State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St.2d 94, 97, 249 N.E.2d 775.
"R.C. 4123.519 provides for appeal from `* * * 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 * * *.'
"Clear though the above quoted language may have seemed to the drafters thereof, the myriad complications of industrial injury, and legislative and administrative efforts to justly cope therewith, have resulted in diffuse efforts by litigants and courts to resolve ensuing conflicts and uncertainties. Predictably, much attention has been directed to the meaning of `extent of disability.'" State, ex rel. Campbell, v. Indus. Comm. (1971), 28 Ohio St.2d 154, 155, 277 N.E.2d 219.
The Revised Code authorizes an appeal from a decision of the administrator of the Bureau of Workmen's Compensation upon his absolute denial of a claim on a jurisdictional ground going to the basis of a claimant's right to participate in the Workmen's Compensation Fund. Ford Motor Co. v. Mosijowsky (1975), 44 Ohio St.2d 109, 110, 338 N.E.2d 762; State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 280, 328 N.E.2d 387, and cases cited therein.
"A denial is on a `jurisdictional basis' when the commission determines that it has no jurisdiction over the claim and is, therefore, without authority to award compensation. When such a denial is made, a determination as to the extent of disability is not reached or passed upon. Hence, the order is appealable." Rummel v. Flowers (1972), 28 Ohio St.2d 230, 233, 277 N.E.2d 422.
Appellee attaches great importance to the utilization of the following negative language in the ruling of the board: "* * * it is the finding and decision of the board that claimant's temporary total disability and hospitalization since July 19, 1965 is not the result of or related to the injuries and allowed disability upon which the instant claim is based, namely, thrombophlebitis right lower leg." (Emphasis added.) Appellee contends that in addressing itself to her claim with this phraseology, the board denied it had jurisdiction to continue with the claim insofar as the payment of total disability benefits was concerned, that denial being absolute and going to the basis of her right to continue to participate in the receipt of total disability benefits.
In the case of State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St.2d 389, 391, 329 N.E.2d 102, this court held that an award of temporary total disability to an employee who already had been awarded permanent partial disability, constituted "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 * * *."
In the instant case, appellee's right to participate in the fund was established originally by the still-standing order of the deputy administrator that appellee's claim was allowed for the disability described as "thrombophlebitis right lower leg." The May 28, 1970, order of the board, allowing such benefits only relative to the period prior to July 19, 1965, clearly was a determination as to the extent of that allowable disability. Hence, the order of the board of review, allowing only temporary total disability as indicated above, was not appealable under R.C. 4123.519.
This case entails no absolute denial of appellee's underlying right to participate in the fund, and the judgment of the Court of Appeals must be reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.