Opinion
No. 75-209
Decided November 12, 1975.
Workmen's compensation — Award of disability benefits — Subsequent award of permanent partial disability — Appeal not available — Mandamus.
APPEAL from the Court of Appeals for Franklin County.
In 1971, James L. Robinson was injured in an industrial accident while employed by relator. As a result of that accident, he filed a claim with the Bureau of Workmen's Compensation. His claim was allowed for "contusion of right occipital area, above right ear, contusion and laceration of right third ring finger." In 1973, Robinson filed an "Application for Determination of Percentage of Permanent Partial Disability," and he was referred to a specialist for examination and report. The specialist concluded, on the basis of "subjective complaint" and previous findings and history, "that this patient has a permanent partial disability related to post-concussive headaches of 10-15%." Robinson was then granted a 12 1/2% permanent partial disability award, and relator's application for reconsideration was denied.
On September 11, 1974, relator filed a notice of appeal in the Court of Common Pleas of Cuyahoga County from the Industrial Commission's award of permanent partial disability benefits to Robinson. Robinson's motion that the appeal be dismissed "for the reason that the order which is the subject of this appeal is a decision as to the extent of disability" was granted by the Court of Common Pleas on November 1, 1974, and, on November 27, relator filed a notice of appeal in the Court of Appeals from that dismissal.
Relator filed the instant mandamus action in the Court of Appeals for Franklin County, on November 13, 1974, claiming that the Industrial Commission grossly abused its discretion in awarding permanent partial disability benefits to claimant and that the "action involves a question of the extent of claimant's disability, and, therefore, relator has no adequate remedy at law." The prayer of the complaint is that the Industrial Commission be ordered to vacate its award of permanent partial disability compensation to claimant.
Respondents moved to dismiss relator's complaint in mandamus "for the reason that said complaint fails to state a claim upon which relief can be granted."
The Court of Appeals sustained respondents' motion and dismissed the cause. In its decision, the court referred to "the certificate of the clerk of courts of Cuyahoga County indicating the filing of a notice of appeal to the Court of Appeals of that district in the same matter."
Relator's appeal as of right brings the cause to this court for review.
Messrs. Baughman Hayes and Mr. Kenneth F. Seminatore, for appellant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey and Mr. Stanley R. Stein, for appellee Industrial Commission.
Mr. Barry Trattner, for appellee James Robinson.
In the recent case of State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St.2d 389, 391, this court held that an award of temporary total disability to an employee who had previously been awarded permanent partial disability was "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, and Commercial Motor Freight's only available remedy was an original action in mandamus."
In this case, the award of permanent partial disability to claimant was a determination as to the extent of disability, and was not appealable. Relator's only remedy was, therefore, an action in mandamus.
R.C. 4123.519, as pertinent here, 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 * * *."
On authority of Commercial Motor Freight, supra, the judgment of the Court of Appeals dismissing the relator's action in mandamus is reversed, and the cause is remanded to that court to hear the merits of relator's complaint in mandamus.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.