Rummel v. Flowers

• Decision Date: 05 January 1972
• Docket Number: No. 71-90,71-90
• Citation: 277 N.E.2d 422,28 Ohio St.2d 230
• Parties: , 57 O.O.2d 467 RUMMEL, Appellee, v. FLOWERS, Admr., Bureau of Workmen's Compensation, Continental Can Co., Appellant.
• Court: Ohio Supreme Court

Page 230

28 Ohio St.2d 230

277 N.E.2d 422, 57 O.O.2d 467

RUMMEL, Appellee, v. FLOWERS, Admr., Bureau of Workmen's Compensation, Continental Can Co., Appellant.

No. 71-90.

Supreme Court of Ohio.

Jan. 5, 1972.

Syllabus by the Court

When an order of the Industrial Commission finds that 'claimant is not totally disabled but is temporarily partially disabled to a moderate degree' and further orders the employer to pay compensation in specified amounts, such order is a decision only as to the extent of disability and is not an absolute denial of a claim going to the basis of claimant's right to participate in the Workmen's Compensation Fund and, therefor, is not appealable to the Court of Common Pleas under the provisions of R. C. § 4123.519. (Reeves v. Flowers, 27 Ohio St.2d 40, 271 N.E.2d 769, and State, ex rel. Campbell, v. Indus. Comm., 28 Ohio St.2d 154, 277 N.E.2d 219.)

On September 20, 1965, Ralph L. Rummel, appellee herein, was injured by a falling dump truck bed while in the course of his employment. His employer, Continental Can Company, a self insurer under the workmen's compensation law, is the appellant herein. A claim was filed with the Bureau of Workmen's Compensation, alleging injuries consisting of fractures of the ribs, severe contusions to lower chest area and to dorsal spine. The application was granted and compensation and medical expenses paid.

On February 4, 1966, appellant filed the following motion with the bureau:

'The employer respectfully requests the claimant be examined by a member of the bureau's medical department to determine the extent of disability. The latest medical reports mention only subjective complaints.'

On June 23, 1966, the administrator entered the following order, the motion ruled upon being that of appellant, filed February 4, 1966, but erroneously referred to in the order as claimant's motion:

'The administrator finds that claimant's motion filed 2-4-66 was allowed and claimant was examined by the medical section. The administrator now finds that claimant is not totally disabled but is temporarily partially disabled to a moderate degree.

'The employer is ordered to pay compensation as follows:

'Temporary partial compensation at $44.14 per week from 3-24-66 to 12-28-66 (end of 40 week period) in the total amount of $1765.60, based on an impairment of $66.21 (55% medical). The employer shall take credit for the 5 4/7 weeks compensation paid from 3-24-66 to 5-1-66 at $49 per week, and in the amount of $273.'

Upon appeal by claimant to the Regional Board of Review an order was entered stating in part 'after fully considering the proof of record and arguments of parties, finds the appeal of claimant should be denied, and it is hereby ordered that the order of the deputy administrator E. F. Weaver dated 6-23-66 be affirmed.' A further appeal to the Industrial Commission was refused on December 6, 1967.

A timely appeal was then instituted by appellee in the Common Pleas Court of Knox County. A petition was filed therein by appellee on February 23, 1968, which, in addition to the usual averments, contained, after a description of the accident, the following:

'* * * that as a direct and proximate result thereof while in the course of and arising out of his employment the plaintiff, Ralph Rummel, sustained contusions of the lower chest area, fracture of a rib, contusion of the dorsel spine and conversion hysteria which developed into a conversion reaction.' (Emphasis added.)

Appellant reised the defense, both by demurrer to the petition and motion for summary judgment, that the order appealed from was not a decision 'other than a decision as to extent of disability' and thus not appealable to the Common Pleas Court under R.C. § 4123.519.

Both the demurrer and motion for summary judgment were overruled. A jury was waived and, upon trial to the court, a judgment was entered allowing appellee 'to participate and continue to participate in benefits under the Ohio Workmen's Compensation Act for disabilities described as fractures of ribs, severe contusions to lower chest area, contusion to dorsal spine, contusion to the spinal chord (sic), spinal chord shock and conversion reaction.'

Upon appeal to the Court of Appeals for Knox County, the judgment was affirmed, one judge dissenting. Additional facts appear in the opinion.

Clayman, Jaffy & Taylor and Stewart R. Jaffy, Columbus, for appellee.

Jack L. Johnson, Columbus, for appellant.

STEPHENSON, Justice.

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 * * *.'

The pivotal question presented in this appeal is whether the decision of the administrator, affirmed by the Regional Board of Review, was a decision 'other than a decision as to the extent of disability,' and hence appealable to the Common Pleas Court by virtue of the above-cited section.

Two basic principles of law enunciated by this court in its decisions interpreting the above-cited section control and are dispositive of this appeal. The first is that if the decision appealed from is, as stated in Carpenter v. Scanlon (1958), 168 Ohio St. 139, 151 N.E.2d 561, 'an absolute denial of the claim on a jurisdictional ground going to the basis of claimant's right' to participate or, as stated in State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775, and Reeves v. Flowers (1971), 27 Ohio St.2d 40, 271 N.E.2d 769, a denial that is absolute going to the basis of claimant's right, the order is one 'other than a decision as to extent of disability' and appealable. State, ex rel. Campbell, v. Indus. Comm. (1971), 28 Ohio St.2d 154, 277 N.E.2d 219.

A denial is on a 'jurisdictional basis' when the commission determines that it has no jurisdiction over the claim and is, therefore, without authority to award compensation. When such a denial is made, a determination as to the extent of disability is not reached or passed upon. Hence, the order is appealable. For a discussion of the concept of an order denying participation upon a jurisdictional ground see State, ex rel. DePalo, v. Indus. Comm. (1934), 128 Ohio St. 410, at page 417, 191 N.E. 691, interpreting the rehearing procedure of G.C. § 1465-90 (R.C. § 4123.51), now repealed.

The second controlling principle is that the Workmen's Compensation Act was so structured by the General Assembly to repose in the commission sole and final jurisdiction to determine extent of disability, and thus the amount of compensation to which a claimant is entitled to under the Act. See the second paragraph of the syllabus in Brecount v. Procter & Gamble (1957), 166 Ohio St. 477, 144 N.E.2d 189, approving and following State, ex rel. Kauffman, v. Indus. Comm. (1929), 121 Ohio St. 472, 169 N.E. 572, and Fisher Body Co. v. Cheflo (1930), 122 Ohio St. 142, 171 N.E. 31.

The above principles are epitomized in Valentino v. Keller (1967), 9 Ohio St.2d 173, 224 N.E.2d 748, wherein it is stated:

'This court has consistently held that on the question of a claimant's right to participate there is a right to appeal from the decision of the Industrial Commission to the Common Pleas Court. Upon the question of extent of disability there is no right of appeal from the decision of the Industrial Commission to the Common Pleas Court.'

An examination of the decision herein, from which the appeal herein was taken to the Court of Common Pleas, discloses that it does no more than adjudicate that the claimant is not totally disabled but temporarily the amount of compensation. It is readily the amount of conpensation. It is readily observable that the decision is not one denying the right to participate on a jurisdictional ground, nor is it a denial going to the basis of claimant's right. Rather than denying participation, it allows participation and awards benefits. Admittedly, it is not a decision continuing the total disability benefits previously awarded and which claimant desires continued, but it is, nevertheless, a decision determining the degree of disability, in this case partial, and allowing participation under the Act to the extent of that partial disability.

In Noggle v. Indus. Comm. (1935), 129 Ohio St. 495, 196 N.E. 377, an appeal to the court was taken by a claimant from an order finding him partially disabled, the claimant contending that the order should have found him totally and permanently disabled. The then statutory law allowed an appeal to the Common Pleas Court only if compensation was denied (1) where the injury was self-inflicted, (2) where the injury did not arise in the course of employment or (3) on any other ground going to the basis of the claimant's right.

In holding that the commission had final jurisdiction to determine extent of disability and that an appeal was precluded, the court stated, in the first paragraph of the syllabus:

'When the Industrial Commission assumes jurisdiction of a disability claim, finds that claimant's disability is but partial, and not total and permanent, and, upon such finding,...