Green v. Stringer

• Decision Date: 13 January 1978
• Citation: 58 Ohio App.2d 53,389 N.E.2d 510
• Parties: , 12 O.O.3d 209 GREEN, Appellant, v. STRINGER, Admr., Appellant, International Harvester Company, Appellee. *
• Court: Ohio Court of Appeals

Page 53

58 Ohio App.2d 53

389 N.E.2d 510, 12 O.O.3d 209

GREEN, Appellant, v. STRINGER, Admr., Appellant, International Harvester Company, Appellee. ^*

Court of Appeals of Ohio, Second District, Clark County.

Jan. 13, 1978.

Syllabus by the Court

An order of the Industrial Commission mandating that an injured employee receiving the maximum statutory amount for permanent and total disability may have such benefits reduced by the amount of compensation received under a non-occupational disability retirement plan totally paid for by the employer is not a decision as to the extent of disability or the extent of participation in the Workers' Compensation Fund.

Joseph A. Marchese, Columbus, for appellant Thomas H. Green.

Solomon H. Basch, Columbus, for appellant Anthony R. Stringer, administrator, Bureau of Workers' Compensation.

Vorys, Sater, Seymour & Pease, Thomas M. Taggart and Robert E. Tait, Columbus, for appellee International Harvester Co.

SHERER, Presiding Judge.

The facts in this case are not in dispute.

On July 22, 1969, Thomas H. Green suffered an injury in the course of and arising out of his employment with International Harvester Company as a result of which he never did return to his work.

On February 5, 1974, the Industrial Commission issued an order declaring Green to be permanently and totally disabled as a result of that accident and the employer was ordered to pay Green the statutory amount for such disability.

At the time of his injury Green was a member of a union with which the employer had an agreement providing a pension plan which affords monthly benefits to an employee who is permanently and totally disabled whether or not such disability is occupational or non-occupational in origin. The disability retirement plan is supported entirely by contributions from the employer.

On April 22, 1974, the employer filed a motion with the Industrial Commission pursuant to the provisions of R.C. 4123.56 requesting an order that permanent and total disability compensation benefits be reduced by the amount of permanent total disability pension payments made by the employer pursuant to its disability retirement program.

On July 10, 1974, the Industrial Commission denied the employer's motion.

The employer, pursuant to R.C. 4123.519, appealed to the Common Pleas Court. Green and the Administrator moved to dismiss the appeal on the ground that the Common Pleas Court lacked jurisdiction because the Industrial Commission's decision was not other than a decision as to the extent of disability.

The trial court overruled the motions to dismiss the appeal, holding that the Commission's order was appealable.

The trial court, after considering the evidence presented, held that R.C. 4123.56 applied to the facts in this case, and found that the employer was entitled to reduce the permanent total Workers' Compensation benefits payable to Green by the amounts of disability payments made to him under the employer's disability retirement program pursuant to the provisions of R.C. 4123.56. The court rendered a final judgment in favor of International Harvester Co.

Both Green and the Administrator of the Bureau of Workers' Compensation have appealed to this court.

Appellants assign two errors to the judgment of the Common Pleas Court:

"(1) The Trial Court erred in holding that it had jurisdiction of the employer's appeal.

"(2) That the Trial Court erred in holding that Revised Code 4123.56 is applicable to the facts in this case."

Appellants argue that the Common Pleas Court lacked jurisdiction of the employer's appeal because the decision and order of the Industrial Commission was an order with respect to the extent of Green's right to participate in the Workers' Compensation Fund and was not appealable under R.C. 4123.519.

Appellants cite, along with other cases, the case of State, ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St.2d 154, 277 N.E.2d 219. At pages 155, 156, 277 N.E.2d at pages 220-221, the court stated:

"In reviewing past decisions of this court, a firm thread of consistency becomes evident. It is apparent from our prior holdings that an order of the Industrial Commission which is not an absolute denial of a claim going to the basis of a claimant's right to participate, or to continue to participate, in the Workmen's Compensation Fund is 'a decision as to the extent of disability' within the meaning of R.C. 4123.519. Carpenter v. Scanlon (1958), 168 Ohio St. 139, 151 N.E.2d 561; State, ex rel. Mansour v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775; Reeves v. Flowers (1971), 27 Ohio St.2d 40, 271 N.E.2d 769.

"Equally discernible from our former decisions is the deductive conclusion that an order of the Industrial Commission that determines the extent to which a claimant may participate, or continue to participate, in the Workmen's Compensation Fund under an allowed claim is also 'a decision as to the extent of disability' within the meaning of R.C. 4123.519. Brecount v. Procter & Gamble Co. (1957), 166 Ohio St. 477, 144 N.E.2d 189; State, ex rel. Mansour, v. Indus. Comm., supra, 19 Ohio St.2d at page 101, 249 N.E.2d 775; Reeves v. Flowers, supra, 27 Ohio St.2d at page 44, 271 N.E.2d 769."

R.C. 4123.519 provides in 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 * * *."

In this case, the Industrial Commission made an order on February 5, 1974, finding Green to be permanently and totally disabled as a result of an injury in the course of and arising out of his employment and ordering the employer to pay Green the statutory amount for such disability.

R.C. 4123.56, styled "Temporary disability compensation," provides in part:

"If any compensation for total disability has been paid for the same period or periods for which non-occupational disability insurance or benefits is or has been paid pursuant to an insurance policy or program to which the employer has made the entire contribution or payment for providing such insurance or benefits, compensation for total disability for such period or periods shall be paid only to the extent by which such payment or payments exceeds the amount of such non-occupational insurance or benefits paid or payable."

In the case State, ex rel. Benton, v. C. & So. O. Elec. Co. (1968), 14 Ohio St.2d 130, 237 N.E.2d 134, the court held, in its syllabus:

"1. Mandamus cannot be used as a substitute for an appeal pursuant to Section 4123.519, Revised Code, where an appeal thereunder is available to test a determination of the Industrial Commission.

"2. A claimant cannot receive partial disability compensation under division (C) of Section 4123.57, Revised Code, in addition to compensation for permanent total disability under Section 4123.58, Revised Code, for the same injury.

"3. Where an employee suffers an injury resulting in the bilateral amputation of both hands, he is entitled to permanent total disability benefits under Section 4123.58, Revised Code, and such award precludes a further award for partial disability benefits under Section 4123.57, Revised Code, for the same injury."

At page 131, 237 N.E.2d at page 135, the court stated the case as follows:

"The appellant, Fred R. Benton, in the course of and arising out of his employment, sustained severe burns to both of his hands, requiring bilateral amputation. On October 24, 1963, the Bureau of Workmen's Compensation, having paid appellant temporary total disability benefits from the date of the injury, ordered payment of permanent and total disability benefits. Appellant now seeks permanent partial disability benefits in addition to the permanent and total disability benefits already awarded. The Industrial Commission has denied his claim.

"Appellant, uncertain as to the proper procedure to test the order of the commission, brought an appeal to the Common Pleas Court, and thereafter to the Court of Appeals, and also instituted an original mandamus action in the Court of Appeals. Being unsuccessful in both efforts, he has consolidated the appeals which were heard in this court as one."

In dismissing the appeal in the mandamus action and deciding the appeal on its merits, it appears that the court did not consider the appeal as one involving a question of "extent of disability" or "extent of participation" but rather a question involving interpretation of division (C) of R.C. 4123.57 and R.C. 4123.58.

Like Benton, Green in the case before us is receiving from his employer the maximum benefit provided by statute for his permanent and total disability. As Benton sought additional compensation for permanent partial disability contrary to the provisions of division (C) of R.C. 4123.57, Green is attempting to...