Opinion
No. 34852
Decided November 14, 1956.
Workmen's compensation — Appeal from decision of administrator — Regional Board of Review — Duty to hear appeal mandatory — Order of dismissal for want of jurisdiction void — Appeal from decision of board or commission to Common Pleas Court — Procedure — Procedendo.
1. Under Section 4123.516, Revised Code, a claimant or an employer who is dissatisfied with a decision of the Administrator of the Bureau of Workmen's Compensation may appeal therefrom by following the procedure outlined in such section, and upon the filing of a notice of appeal the Industrial Commission must assign the appeal for hearing before a Regional Board of Review accordingly as will be most convenient to the claimant. The decision of such board shall be the decision of the commission unless the commission allows an appeal to itself. The board of review is under a mandatory duty to hear the appeal if properly perfected, and an order by it dismissing the appeal for want of jurisdiction is null and void.
2. Under Section 4123.519, Revised Code, a claimant or an employer may 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 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. Like appeal may be taken from a decision of a Regional Board of Review from which the commission has refused to permit an appeal to itself. In such an appeal the court or a jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the State Insurance Fund, upon the evidence adduced at the hearing of the appeal. Such appeal contemplates a new trial in the Court of Common Pleas and is not concerned with the consideration of an erroneous dismissal of an appeal by a board of review or the Industrial Commission upon the ground of lack of jurisdiction.
IN PROCEDENDO.
On May 26, 1956, Federated Department Stores, Inc., hereinafter designated relator, instituted this action in this court for a writ of procedendo against Betty D. Brown, hereinafter designated claimant, Joseph J. Scanlon, Administrator of the Bureau of Workmen's Compensation, hereinafter designated administrator, the Industrial Commission, hereinafter designated commission, and the Columbus Regional Board of Review, hereinafter designated the board.
In its petition relator avers substantially as follows:
Claimant was employed by relator on May 19, 1953, in its stock department at its Columbus store. On July 2, 1953, claimant filed a claim with the commission, alleging that an injury occurred to her on May 19, 1953, and on July 13, 1953, the commission allowed the claim. Subsequently, temporary total disability payments were made to claimant covering the period from May 22, 1953, through November 8, 1953.
On December 8, 1955, upon application of claimant, the administrator awarded temporary total disability payments for the period from November 9, 1953, through February 12, 1956.
Relator appealed under the provisions of Section 4123.516, Revised Code, and the appeal was set for hearing before a Regional Board of Review which, upon hearing, found that it had no jurisdiction and dismissed the appeal, with the following order:
"The board, after fully considering the proof of record, evidence offered at the time of this hearing and arguments of parties, find that the claimant's motion to dismiss the appeal on the grounds that the board has no jurisdiction to determine the extent of disability is sustained."
It is alleged in relator's petition also that such decision of the board is contrary to law and is not determinative of the issue involved at the hearing before it.
The question put in issue by relator's appeal is whether claimant's disability was the result of an injury compensable under the workmen's compensation law.
Relator made application to the commission for allowance of an appeal from the decision rendered by the board, and the commission, without hearing, issued the following order:
"It is ordered that the appeal filed February 8, 1956, by the employer from the order made February 1, 1956, by the Columbus Regional Board of Review be refused and that copies of this order be mailed to all interested parties."
Relator prays that a writ of procedendo issue commanding the commission to order the board and the administrator to proceed without further delay with the hearing and final determination of the relator's appeal, and for all other proper relief.
The administrator, the commission and the board demurred to relator's petition upon the grounds of misjoinder of parties respondent and that the petition does not state a cause of action.
It is agreed among the parties that the decision upon the demurrer will be dispositive of the case.
Mr. Carlton S. Dargusch, Jr., and Mr. John G. McCune, for relator.
Mr. C. William O'Neill, attorney general, and Mr. James L. Young, for respondents.
The present case has to do with the interpretation of some of the new enactments in the Workmen's Compensation Act, effective October 5, 1955.
So far as a misjoinder of parties is concerned, it is true that the administrator is not a necessary party although an allowable one, since it is his decision with which the appeal is concerned.
Either a claimant or an employer may appeal from a decision of the administrator by taking the steps outlined in Section 4123.516, Revised Code. This section provides that upon the filing of a notice of appeal the commission shall assign the appeal for hearing before a Regional Board of Review accordingly as will be most convenient to the claimant, and the decision of the board shall be the decision of the commission unless the commission, upon application of the administrator, the claimant or the employer, allows an appeal to the commission.
In the present case, since the commission did not allow an appeal from the board, the decision of the board became the decision of the commission, and it would only have been necessary to make the commission a party herein, but certainly all the other parties respondent are so intertwined that if not necessary parties they are proper ones.
We come now to the principal issue raised by the demurrer, and that is whether the petition fails to state a cause of action for the reason that relator has an adequate remedy at law by an appeal to the Court of Common Pleas under the provisions of Section 4123.519, Revised Code.
Section 4123.516, Revised Code, providing for an appeal by either claimant or employer from a decision of the administrator, makes it mandatory for the commission to assign the appeal for hearing before a Regional Board of Review and likewise makes it mandatory for such board to hear and determine the appeal. Such board has no authority to dismiss such an appeal, provided the steps for taking it have been complied with, and it is impossible to conceive, in the present case, upon what theory the board undertook to dismiss the appeal before it. We can only imagine that since Section 4123.519 provides for an appeal to the Common Pleas Court from any decision of the commission, other than a decision as to the extent of disability, the board must have erroneously concluded that it does not have authority to hear an appeal as to the extent of disability; and that it considered the appeal in the present case to be upon that question. Even if the appeal were upon that question, the board would be compelled to hear it, but, as a matter of fact, the appeal is not upon that question but does concern the claim of relator that the disability of claimant, whether permanent or otherwise, did not constitute a compensable injury under the workmen's compensation law.
The dismissal of relator's appeal by the board and the refusal of the commission to consider an appeal from that order, where the board has a clear and unqualified duty to hear the appeal, bring us to the vital question in the present case — whether relator has an adequate remedy at law by an appeal to the Court of Common Pleas under Section 4123.519. If it does have such a remedy, then it is not entitled to a writ in this case, whereas, if it does not have such a remedy, it is entitled to a writ commanding the board to exercise the clear duty imposed upon it by law to render a decision upon a proper appeal made to it.
The present case does not concern an attempt to control the board as to what its decision should be. Its only object is to secure an order that the board proceed with its clearly defined legal duty to hear the appeal.
As was said in the case of State, ex rel. Davey, Governor, v. Owen, Judge, 133 Ohio St. 96, at page 106, 12 N.E.2d 144, 114 A.L.R., 686:
"The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be."
Ordinarily, in any case where a court enters an order of dismissal for lack of jurisdiction, an appeal on questions of law may be had to a higher court as to the correctness of the order. However, Section 4123.519 does not provide for such an appeal from an order of dismissal by the board or the commission. That section reads in part as follows:
"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. Like appeal may be taken from a decision of a regional board from which the commission has refused to permit an appeal to the commission.
"* * *
"Further proceedings shall be had in accordance with the rules of civil procedure. The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action.
"The court shall certify its decision to the commission and such certificate shall be entered in the records of the court and appeal from such judgment shall be governed by the law applicable to the appeal of civil actions."
Thus, it seems clear that the appeal contemplated from either the board or the commission is one in which the sole question for the court, or a jury if demanded, is the determination of the right of the claimant to participate or to continue to participate in the State Insurance Fund, upon the evidence adduced at the hearing in the court. There is no provision for remanding a cause to the commission or a board where that board has unlawfully declined to hear an appeal from the administrator.
In all probability the General Assembly never contemplated such action, where an appeal had been properly perfected, and, therefore, considered that such an order would be null and void. We so hold it to be, and, therefore, the relator is entitled to a writ of procedendo to compel the board to hear its appeal.
Demurrer overruled and writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TAFT, JJ., concur.