Hospitality Motor Inns, Inc. v. Gillespie

• Decision Date: 20 May 1981
• Docket Number: No. 80-1137,80-1137
• Citation: 421 N.E.2d 134,20 O.O.3d 209,66 Ohio St.2d 206
• Parties: , 20 O.O.3d 209 HOSPITALITY MOTOR INNS, INC., Appellant, v. GILLESPIE et al., Appellees.
• Court: Ohio Supreme Court

Page 206

66 Ohio St.2d 206

421 N.E.2d 134, 20 O.O.3d 209

HOSPITALITY MOTOR INNS, INC., Appellant, v. GILLESPIE et al., Appellees.

No. 80-1137.

Supreme Court of Ohio.

May 20, 1981.

Syllabus by the Court

The "legal proceedings" contemplated by R.C. 4123.519 is the act of appeal, itself, and once such appeal is perfected, the Court of Common Pleas has authority to award attorney's fees to the successful claimant, notwithstanding the fact that the appeal is subsequently dismissed for lack of jurisdiction.

On June 27, 1973, the defendant-appellee, Juanita P. Gillespie, while employed as a waitress for plaintiff-appellant Hospitality Motor Inns, Inc., slipped and fell. Subsequently, she filed a claim with the Bureau of Workers' Compensation for injuries to her head, neck, arm and right knee, purportedly sustained as a result of the fall. On February 1, 1974, the claim was allowed and appellee was granted compensation for temporary total disability for the period from August 1, 1973, to February 1, 1974. Included in the order awarding such benefits was the statement, " * * * further compensation to be paid upon submission of medical proof that disability is a result of the injuries sustained * * *." There was no appeal from this order.

On November 18, 1974, appellee filed a motion with the bureau that she "be paid temporary total benefits from February 2, 1974, to date." In support thereof, she submitted a medical report dated October 29, 1974. A hearing was had on the motion on March 12, 1975, and the administrator of the bureau granted the request and ordered that temporary total disability compensation be paid to Gillespie for the period from February 2, 1974, to May 6, 1975. During the period covered by the order of March 12, appellee also received benefits for medical treatment on a claim for injuries sustained in 1969 while she was employed by a different employer.

In accordance with R.C. 4123.516, appellant filed timely notice of appeal of the administrator's order. The Dayton Regional Board of Review affirmed the order of the administrator and appellant sought review before the Industrial Commission. The commission, on June 27, 1977, finding that the order of the board of review was supported by proof of record and was not contrary to law, affirmed. Thereafter, pursuant to R.C. 4123.519, appellant perfected its appeal to the Court of Common Pleas of Hamilton County.

Appellee moved for summary judgment dismissing the appeal upon the basis that the decision of the Industrial Commission was a decision as to the "extent of disability" and therefore was not appealable. Hence, the Court of Common Pleas had no jurisdiction to hear the matter. Appellee also sought an award of attorney's fees pursuant to R.C. 4123.519. The court found that the decision of the Industrial Commission was a decision as to the extent of disability. Accordingly, it granted summary judgment dismissing the appeal and, at the same time, awarded attorney's fees to appellee. The Court of Appeals affirmed, and remanded for determination of the amount of attorney's fees to be awarded.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Squire, Sanders & Dempsey and B. Casey Yim, Cleveland, for appellant.

Martin M. Young Co., L.P.A. and Martin M. Young, Cincinnati, for appellee Gillespie.

William J. Brown, Atty. Gen. and Gerald H. Waterman, Asst. Atty. Gen., for appellee Administrator.

PAUL W. BROWN, Justice.

The questions presented in this appeal are, first, whether, pursuant to R.C. 4123.519, ¹ the decision of the Industrial Commission may be appealed to the common pleas court; and, second, if the decision is not appealable, whether attorney's fees, nevertheless, may be awarded to the successful claimant. ² Both lower courts determined that the decision sought to be appealed was one "as to the extent of disability" and, thus, not appealable. ³ Moreover, both lower courts held that, notwithstanding the nonappealable nature of the commission's decision, the claimant was entitled to an award of attorney's fees in this cause. We agree.

The question of when a decision is "one as to the extent of disability" is not new to this court. In a recent and exhaustive opinion containing a review of both the history of R.C. 4123.519 and the cases construing that section (and its predecessors), former Chief Justice Leach and this court established guidelines upon which the bench and bar may rely in determining the issue of the appealability of a decision of the commission. Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 384 N.E.2d 693. As we later stated, Zavatsky, in essence, held that a decision as to "the right to participate is appealable, but (one as to) the extent of participation is not appealable." (Emphasis sic.) Miraglia v. B.F. Goodrich (1980), 61 Ohio St.2d 128, 130, 399 N.E.2d 1234.

In Zavatsky, we decided two separate, but legally similar, workers' compensation cases. In the first, John Zavatsky filed an application for compensation, claiming injury to his left elbow, low back and left leg. The claim was allowed as to the elbow, but denied as to the latter injuries on the basis that they were not the result of, or related to, the allowed injury. The claimant's appeal was dismissed by the Court of Common Pleas which determined that the decision appealed from was one as to the extent of disability. The Court of Appeals affirmed.

In the second case decided in Zavatsky, the application of Caroline Williams was allowed for an injury described as a "contusion of the scalp and abrasion of the left wrist." No appeal was taken therefrom. Subsequently, the claimant sought to amend the decision to include a new medical condition described as "hysterical neurosis." The bureau allowed the claim to be amended to include the new condition and the employer appealed. In the Court of Common Pleas, the claimant sought dismissal of the appeal on the premise that the decision was also one as to the extent of disability and was, therefore, not properly appealable. The motion to dismiss was granted and the Court of Appeals affirmed. We reversed and remanded in both cases, stating in paragraph one of the syllabus:

"An order of the Industrial Commission, which either denies or allows a claimant the right to participate in the Workers' Compensation Fund for injury to a specific part or parts of the body involving loss or impairment of bodily functions on the basis that such was or was not the result of a compensable injury, is a decision other than one as to the extent of disability and, thus, pursuant to R.C. 4123.519, may be appealed to the Court of Common Pleas by the claimant in the event of such a denial, or by the employer in the event of such an allowance."

Our decision in Zavatsky is dispositive of the first issue presented in the appeal in the case sub judice. It is clear that the decision as to claimant's right to participate was made, not in the commission's order granting further compensation, but in the original order of February 1, 1974 an order which the employer did not appeal.

Appellant in the instant cause argues that Zavatsky dictates a different resolution than that reached below. Essentially, appellant's argument is that because of the preexisting 1969 claim, the commission must, necessarily, have made a "threshold determination" that there was a causal nexus between the 1973 injury and the further compensation of claimant. Appellant further argues that this decision went to the claimant's right to continue to participate in the fund and not to the extent of disability and that it is this causal relationship issue which appellant is attacking. In support thereof, appellant relies upon this court's decision in Zavatsky v. Stringer, supra; Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 125 N.E.2d 1; and White Motor Corp. v. Moore (1976), 48 Ohio St.2d 156, 357 N.E.2d 1069. In White Motor Corp., the issue presented was whether expert medical evidence is necessary to establish a causal connection between an injury and the subsequent disability. We held that it was only necessary in a claim involving complex medical problems. In Fox, the claimant sought an award for a heart ailment, when the original claim had been for an accidental injury to his ankle. In that case, at page 573, 125 N.E.2d 1, we again recognized the necessity of finding a causal connection between an injury and the subsequent disability in workers' compensation cases.

Appellant argues that it is this question of such "causal relationship" which it is raising in this appeal, and, therefore, appeal should lie. Appellant's argument would be effective if this appeal had been from the original decision awarding compensation or if claimant was seeking benefits for a new disability. However, neither situation prevails in the instant cause. As noted above, the employer did not appeal the original decision allowing the claim and, as conceded in appellant's brief, "the instant case does not involve an additional medical condition, nor does it involve an injury to a different part of the body." ⁴ If appellant's argument is followed to its ultimate conclusion, either an employer or employee could effectively circumvent the operation of R.C. 4123.519 by merely uttering the incantation "causal relationship" upon the grant or denial of any claim for benefits subsequent to the original award.

In the instant cause, the commission merely extended the duration of compensation being paid for injuries determined to be compensable in a previously allowed claim. The decision, therefore, was one as to the extent of disability and it was not properly appealable. Smith v. Krouse (1978), 54 Ohio St.2d 369, 370, 377 N.E.2d 493; Zavatsky v. Stringer, supra.

The second issue presented for our consideration has not been previously addressed by this court. " 'The general rule in Ohio is that, in the absence of statutory provision making...