State ex rel. Bosch v. Industrial Com'n of Ohio, s. 81-1658

• Citation: 1 O.B.R. 130,438 N.E.2d 415,1 Ohio St.3d 94
• Decision Date: 28 July 1982
• Docket Number: 81-1685,Nos. 81-1658,s. 81-1658
• Parties: , 1 O.B.R. 130 The STATE, ex rel. BOSCH, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees. The STATE, ex rel. SWEIGART, v. INDUSTRIAL COMMISSION OF OHIO et al.
• Court: United States State Supreme Court of Ohio

Page 94

1 Ohio St.3d 94

438 N.E.2d 415, 1 O.B.R. 130

The STATE, ex rel. BOSCH, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

The STATE, ex rel. SWEIGART, v. INDUSTRIAL COMMISSION OF OHIO et al.

Nos. 81-1658, 81-1685.

Supreme Court of Ohio.

July 28, 1982.

Syllabus by the Court

Once a claimant's right to participate in the Workers' Compensation Fund for an injury to a specific part of the body has been determined, any further determination of the Industrial Commission pertaining to the computation of compensation payable under the workers' compensation law for that specific injury is as to "extent of disability," and is not appealable pursuant to R.C. 4123.519. (Zavatsky v. Stringer, 56 Ohio St.2d 386, 384 N.E.2d 693 , followed; State ex rel. Foley v. Greyhound Lines, 16 Ohio St.2d 6, 241 N.E.2d 904 , overruled.)

No. 81-1685

On September 20, 1978, relator, Larry D. Sweigart, was injured while in the course and scope of his employment with respondent, Industrial Electric Motors, Inc. The injuries sustained by relator resulted from an accident in which the truck relator was operating ran off Kentucky Route 8 and overturned.

Relator filed a claim with the Bureau of Workers' Compensation since his contract of employment was entered into in Ohio. His claim was allowed for "fractured skull, cerebral contusion, fractured spine with paraphlegia from waist down, ruptured spleen and fractured left pelvic [sic ]." Since that allowance, relator has continually received from the Workers' Compensation Fund temporary total disability compensation and medical benefits.

Relator subsequently moved the Bureau of Workers' Compensation for an additional award under R.C. 4123.57(C) ¹ for the loss of use of both of his legs. On December 11, 1980, relator's motion was denied by the district hearing officer. The denial was based upon Industrial Commission Resolution No. R80-7-67. ²

On March 10, 1981, the Dayton Regional Board of Review affirmed the district hearing officer's denial of relator's motion for additional compensation under R.C. 4123.57(C). The regional board's decision was affirmed on September 25, 1981, by respondent, Industrial Commission.

On November 9, 1981, relator instituted the present action in mandamus in this court to compel the commission to grant his application for additional compensation.

No. 81-1658

On August 20, 1978, appellant, Gerald W. Bosch, while employed by appellee, Cincinnati Gas & Electric Co., sustained an injury to his spinal cord. As a result thereof, he lost the use of both legs.

Appellant's workers' compensation claim for permanent and total disability was allowed. Thereafter, on August 15, 1979, appellant filed an application for additional benefits pursuant to R.C. 4123.57(C). On December 11, 1980, this claim was denied by the district hearing officer of the Industrial Commission. Subsequent appeals to the Dayton Regional Board of Review and the Industrial Commission resulted in affirmance of the district hearing officer's order.

Appellant filed a complaint for writ of mandamus on May 29, 1981, with the Court of Appeals for Franklin County. Appellees filed a motion to dismiss the complaint which was sustained on September 15, 1981. The cause is now before this court upon an appeal as of right.

Droder & Miller Co., L. P. A., A. Dennis Miller and Dennis W. Van Houten, Cincinnati, for appellant in case No. 81-1658.

Porter, Wright, Morris & Arthur, Charles J. Kurtz, III, and Roberta Y. Bavry, Columbus, for appellee Cincinnati Gas & Elec. Co. in case No. 81-1658.

Keating, Muething & Klekamp, Joseph L. Trauth, Jr., and Gregory M. Utter, Cincinnati, for relator in case No. 81-1685.

William J. Brown, Atty. Gen., and Bernard C. Fox, Jr., for Industrial Commission in case Nos. 81-1658 and 81-1685.

WILLIAM B. BROWN, Justice.

No. 81-1685

I.

The threshold question presented in case No. 81-1685 is whether a writ of mandamus would be proper relief in this cause. "In order for a writ of mandamus to issue, this court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 7, 399 N.E.2d 66 .

R.C. 4123.519 provides, in pertinent part: "[t]he claimant or the employer may appeal a decision of the industrial commission * * * in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas * * *." (Emphasis added.) R.C. 4123.519 expressly provides, therefore, that the right of appeal is precluded in cases involving the extent of disability. Mandamus, then, is proper to challenge the commission's decision on such a question. State ex rel. General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 328 N.E.2d 387 .

" * * * [A]n order constituting a denial that is absolute and which goes to the basis of claimant's right to participate in the fund is not a 'decision as to the extent of disability,' and is appealable pursuant to R.C. 4123.519." Id., at page 280, 328 N.E.2d 387. Conversely, a decision affecting a claimant's compensation, once claimant's right to participate in the fund had previously been established, is a decision as to the extent of disability and is not appealable. State ex rel. Commercial Motor Freight v. Stebbins (1975), 42 Ohio St.2d 389, 329 N.E.2d 102 .

In the case before this court, relator's claim for temporary total disability was allowed in 1978. This injury formed the basis for his 1980 motion for additional compensation. That application did not involve the determination of his right to participate in the fund, which had been previously decided, but rather involved an increase in compensation based upon a previously compensable injury. Relator's motion for additional compensation pertained to extent of disability and the decision of respondent to deny the motion is not appealable. Mandamus is, therefore, a proper form of relief in this case to test the Industrial Commission's exercise of its discretion.

II.

Industrial Commission Resolution No. R80-7-67, passed July 30, 1980, provides that the decision of this court in State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 390 N.E.2d 1190 , "is not to be applied retroactively but shall apply only to claims where the date of injury is subsequent to June 20, 1979 [the date of the decision]." The syllabus of Walker provides "[a] total and permanent loss of use of both legs constitutes a 'loss' within the meaning of R.C. 4123.57(C). (State, ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64 [322 N.E.2d 660, 75 O.O.2d 157], followed; State, ex rel. Bohan, v. Indus. Comm., 146 Ohio St. 618 [67 N.E.2d 536, 33 O.O. 92], overruled.)"

Relator in case No. 81-1685 argues that Walker is a clarification of the original legislative intent in R.C. 4123.57(C) which establishes his right to the additional compensation. Furthermore, he argues that absent specific provision by this court, Walker should not be limited to injuries occurring after the date of the decision, but is applicable to all claimant's sustaining injuries compensable under the statute. For the foregoing reasons, we agree.

In State ex rel. Bohan v. Indus. Comm. (1946), 146 Ohio St. 618, 67 N.E.2d 536 , this court interpreted G.C. 1465-80 (predecessor section to R.C. 4123.57[C] ) and concluded that "[t]he word 'loss' as used in Section 1465-80, General Code, and therein applied to certain members of the human body means loss by severance and not the loss of use of such members." Id., at paragraph two of the syllabus.

The continuing validity of this holding was placed in some doubt, however, by State ex rel. Gassmann v. Indus. Comm. (1975), 41 Ohio St.2d 64, 322 N.E.2d 660 , in which "loss" as used in R.C. 4123.58 was held to include "[t]otal and permanent paralysis of the body from the waist down * * *." This interpretation of R.C. 4123.58 was "fortified" by a 1973 amendment to the section (135 Ohio Laws 1690, 1706) which specifically included "loss" and "loss of use" within the section. Id., at page 67, 322 N.E.2d 660. The amendment, in the view of this court, merely clarified the original legislative intent of the section.

Although Gassmann was careful to distinguish between the language and legislative histories of R.C. 4123.57 and 4123.58, this court in State ex rel. Walker v. Indus. Comm., supra, adopted the rationale of Gassmann, and explicitly followed it while overruling Bohan. We held that " ' * * * [f]or all practical purposes, relator has lost his legs to the same effect and extent as if they had been amputated or otherwise physically removed.' " Walker, 58 Ohio St.2d at pages 403-404, 390 N.E.2d 1190 (quoting Gassmann, 41 Ohio St.2d at page 67, 322 N.E.2d 660).

The case before this court falls clearly within the purview of Walker, and but for respondent's resolution to apply the case prospectively, relator would have a clear legal right to additional compensation. We turn, then, to the retroactivity of Walker.

It should be recognized that there is no specific provision in Walker that its interpretation of R.C. 4123.57(C) be applied prospectively only. Nor was the holding in Gassmann, upon which Walker is founded, so limited. In the absence of a specific provision in a decision declaring its application to be prospective only, see, e.g., Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413 , the decision shall be applied retrospectively as well: " * * * [t]he general rule is that a decision of the court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210, 129 N.E.2d 467 . There was no basis, then, for the resolution of respondent applying Walker prospectively only, and, as...