Smith v. Krouse

• Decision Date: 21 June 1978
• Docket Number: No. 77-1269,77-1269
• Citation: 8 O.O.3d 387,54 Ohio St.2d 369,377 N.E.2d 493
• Parties: , 8 O.O.3d 387 SMITH, Appellant, v. KROUSE, Admr., Bureau of Workers' Compensation, Appellee, et al.
• Court: Ohio Supreme Court

Page 369

54 Ohio St.2d 369

377 N.E.2d 493, 8 O.O.3d 387

SMITH, Appellant, v. KROUSE, Admr., Bureau of Workers' Compensation, Appellee, et al.

No. 77-1269.

Supreme Court of Ohio.

June 21, 1978.

In 1971, Ada B. Smith, appellant herein, suffered an injury in the course of her employment with the Lancaster Potato Chip Company. Thereafter, appellant filed a claim with the Bureau of Workers' Compensation and was awarded benefits for "low back strain; multiple contusions." In 1973, the Industrial Commission found appellant to be 20 percent permanent partially disabled and, in January 1976, the commission found that appellant's permanent partial disability was 100 percent.

On March 2, 1976, appellant filed a motion seeking a determination by the Industrial Commission that she is permanently and totally disabled. The commission denied the motion, stating in its order: "That the Commission finds from proof of record that the claimant is permanently and totally disabled but not due to the allowed injury in this claim * * *."

Appellant appealed the order of the commission to the Court of Common Pleas. That court sustained a motion to dismiss for the reasons that "appellant has participated and continues to participate in the Workmen's Compensation Fund" and that the order of the commission is a " 'decision as to the extent of disability,' " and not appealable pursuant to R.C. 4123.519.

Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.

The Court of Appeals found its judgment to be in conflict with a judgment rendered upon the same question by the Court of Appeals for Franklin County in Wentzell v. Columbus Bolt & Forging Co. (1961), 112 Ohio App. 552, 176 N.E.2d 866, and certified the record of the case to this court for review and final determination.

Clayman & Jaffy, and Stewart R. Jaffy, Columbus, for appellant.

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

PER CURIAM.

The issue presented in this appeal is whether the order of the commission finding appellant to be permanently and totally disabled "but not due to the (prior) allowed injury" constitutes an appealable order.

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 * * *."

In a series of cases interpreting R.C. 4123.519, it has been held that " * * * it is an order constituting a 'denial that is absolute going to the basis of claimant's right' that is appealable." Reeves v. Flowers (1971), 27 Ohio St.2d 40, 43, 271 N.E.2d 769, 771; State ex rel. Mansour v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775; State ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St.2d 154, 277 N.E.2d 219; State ex rel. General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 328 N.E.2d 387; State ex rel. Commercial Motor Freight v. Stebbins (1975), 42 Ohio St.2d 389, 329 N.E.2d 102; State ex rel. General Motors v. Indus. Comm. (1975...