Marcum v. Barry

• Decision Date: 19 December 1991
• Docket Number: No. 91AP-734,91AP-734
• Citation: 76 Ohio App.3d 536,602 N.E.2d 419
• Parties: MARCUM, Appellee, v. BARRY, Admr., Appellant; Columbus Auto Parts, Appellee. *
• Court: Ohio Court of Appeals

Page 536

76 Ohio App.3d 536

602 N.E.2d 419

MARCUM, Appellee, v. BARRY, Admr., Appellant Columbus Auto Parts, Appellee. ^*

No. 91AP-734.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Dec. 19, 1991.

John R. Workman, Columbus, for appellee Harmon Marcum.

Lee I. Fisher, Atty. Gen., and Gerald H. Waterman, Asst. Atty. Gen., for appellant Administrator, Bureau of Workers' Compensation.

McNamara & McNamara and Mark W. Bean, Columbus, for appellee Columbus Auto Parts.

WHITESIDE, Judge.

Patricia K. Barry, the Administrator of the Bureau of Workers' Compensation, appeals from a judgment of the Franklin County Court of Common Pleas remanding an action initiated as an appeal from the Industrial Commission to the Industrial Commission for readjudication of the factual issues utilizing the legal standard as determined by the trial court. Appellant raises a single assignment of error, as follows:

"The trial court erred in remanding the issue of the merits of this workers' compensation claim back to the Industrial Commission for an administrative readjudication under the standard of law established in Schell v. Globe Trucking [, Inc.] (1990), 48 Ohio St.3d 1 ."

The basic issue before us is application of R.C. 4123.519 and the procedure and jurisdiction to be exercised by the court of common pleas in an appeal to it from the Industrial Commission under such section. Specifically, the issue is whether the entire case is before the court of common pleas de novo so that all factual and legal issues are to be resolved by that court, or whether the appeal is an error proceedings whereby the common pleas court, when it finds legal error, may remand the matter to the Industrial Commission for redetermination of the factual issues.

Neither the trial court nor appellee makes any analysis of a basis for remand other than to cite the case of Borbely v. Prestole Everlock, Inc. (1991), 57 Ohio St.3d 67, 565 N.E.2d 575, wherein the Supreme Court apparently remanded a case to the Industrial Commission, rather than to the trial court for application of the appropriate law. Borbely, however, is not authority for the position taken by the trial court, the issue being neither discussed nor determined by the Supreme Court in Borbely. See the first paragraph of the syllabus of State ex rel. Gordon v. Rhodes (1952), 158 Ohio St. 129, 107 N.E.2d 206. Whatever may be the reason that the last paragraph of the decision of Borbely without further elucidation refers to a remand to the Industrial Commission upon an apparent R.C. 4123.519 appeal, nothing in Borbely suggests that, if some error of law be found, a common pleas court may avoid the responsibility of determining the merits of the matter de novo as mandated by R.C. 4123.519 by instead remanding the matter to the Industrial Commission. Most certainly, the syllabus of Borbely does not so suggest. Although we should not be and are not unmindful of the suggestion of the trend of the law that may be set forth in a Supreme Court opinion, but not included in the syllabus, we also must look to Rule 1(B) of the Supreme Court Rules for the Reporting of Opinions, which states that:

"The syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication."

Under the circumstances, the reference to the remand being to the Industrial Commission, without further elucidation, should be considered dicta rather than the promulgation of a rule of law with respect to the application of R.C. 4123.519.

The jurisdiction of, and procedure to be followed, by the court of common pleas in an appeal from a decision of the Industrial Commission or a staff hearing officer is set forth in R.C. 4123.519, which provides in pertinent part:

"(A) The claimant or the employer may appeal a decision of the industrial commission or its staff hearing officer * * * other than a decision as to the extent of disability, to the court of common pleas * * *. Notice of the appeal shall be filed by the appellant with a court of common pleas within sixty days after the date of the receipt of the decision appealed from * * *. The filings shall be the only act required to perfect the appeal. * * *

" * * *

"(C) Upon receipt of notice of appeal the clerk of courts shall cause notice to be given to all parties who are appellees and to the commission.

"The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action. Further pleadings 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 the action.

"(D) The court shall certify its decision to the commission and the certificate shall be entered in the records of the court and appeal from the judgment shall be governed by the law applicable to the appeal of civil actions.

" * * *

"(F) If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate in the fund, the commission and the administrator shall thereafter proceed in the matter of the claim as if the judgment were the decision of the commission, subject to the power of modification provided by section 4123.52 of the Revised Code."

Although labeled an appeal and commenced initially by the filing of a notice of appeal, the action in the common pleas court under R.C. 4123.519 seeking a redetermination of a decision of the Industrial Commission is not a traditional error proceedings but, instead, is somewhat similar to the law and fact appeal formerly available to the court of appeals from some trial court decisions but abolished by App.R. 2. R.C. 4123.519 contemplates not only a full and complete de novo determination of both facts and law but also contemplates that such determination shall be predicated not upon...