Opinion
No. 86-1009
Submitted November 9, 1987 —
Decided June 22, 1988.
Workers' compensation — Handicapped workers — Reimbursement for expenses incurred — Adverse judgment appealable per R.C. 4123.519.
APPEAL from the Court of Appeals for Franklin County, No. 85AP-521.
Van F. Reneker, an employee of appellee, Wean United, Inc., had diabetes mellitus, which caused him to be impotent and to have a penile prosthesis surgically implanted. On June 30, 1983, he slipped and fell at work damaging the prosthesis, which was then surgically removed and replaced in July 1983. He was awarded temporary total disability benefits for the injury.
On February 24, 1984, appellee, a self-insurer under the workers' compensation law, applied under R.C. 4123.343 for reimbursement of its expenses incurred because of the employee's injury. That statute provides for reimbursement from a special surplus fund for injuries to handicapped workers under certain conditions. On October 25, 1984, a hearing officer of the Industrial Commission denied the application, stating that the employee's pre-existing condition, diabetes, was not aggravated by the injury, nor did it delay recovery. His order was affirmed by the commission.
Appellee sought a writ of mandamus from the Court of Appeals for Franklin County to compel appellant to grant total reimbursement under the statute. On April 24, 1986, the court, following the recommendation of a referee, granted the writ.
The cause is now before this court upon an appeal as of right.
Vorys, Sater, Seymour Pease, Thomas M. Taggart and Sandra J. Anderson, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and Gerald H. Waterman, for appellant.
The court of appeals granted the writ and required appellee to be compensated from the special fund under R.C. 4123.343. We reverse on jurisdictional grounds.
In State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O. 2d 141, 228 N.E.2d 631, we held in paragraph three of the syllabus:
"When a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ. * * *"
R.C. 4123.519 provides in part:
"The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section 4121.35 of the Revised Code in any injury or occupational disease 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. * * *"
This case does not involve a question of the extent of disability. The claimant was awarded temporary total disability compensation, which was not contested. Appellee only requested the court of appeals to construe R.C. 4123.343 to require it to be reimbursed for payments made to and on behalf of the claimant. The court did so construe the statute.
State, ex rel. O.M. Scott Sons Co., v. Indus. Comm. (1986), 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d 1032, also involved only a question of whether the relator, a self-insurer, or the state insurance fund, should be liable for an uncontested occupational disease claim. The court of appeals granted O.M. Scott Sons' request for mandamus relief after holding that the jurisdictional issue was moot because the parties agreed that mandamus was the proper vehicle. We reversed, holding that "the phrase `plain and adequate remedy in the ordinary course of the law' includes in its scope the remedy of an appeal of a decision of the Industrial Commission to the court of common pleas under R.C. 4123.519." Id. at 343, 28 OBR at 408, 503 N.E.2d at 1034. Similarly, State, ex rel. Inland Div., v. Adams (1982), 1 Ohio St.3d 44, 1 OBR 77, 437 N.E.2d 605, also involved the reversal of a writ granted in the court of appeals in a case that should have been appealed under R.C. 4123.519, except in that case the parties had not attempted to confer jurisdiction by agreement, but instead, as here, had merely neglected the jurisdictional issue.
The issue raised in this case does not involve the extent of a claimant's disability; therefore, it was appealable under R.C. 4123.519. Since it was and is appealable, neither the court of appeals nor this court has jurisdiction in mandamus. State, ex rel. Pressley, supra, at paragraph three of the syllabus.
The judgment of the court of appeals is hereby reversed.
Judgment reversed.
LOCHER, HOLMES and WRIGHT, JJ., concur.
SWEENEY and DOUGLAS, JJ., concur in judgment only.
MOYER, C.J., and H. BROWN, J., not participating.