State ex rel. Campbell v. Industrial Commission, 71-115

• Decision Date: 22 December 1971
• Docket Number: No. 71-115,71-115
• Citation: 28 Ohio St.2d 154,277 N.E.2d 219
• Parties: , 57 O.O.2d 397 The STATE et rel. CAMPBELL, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 154

28 Ohio St.2d 154

277 N.E.2d 219, 57 O.O.2d 397

The STATE et rel. CAMPBELL, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee.

No. 71-115.

Supreme Court of Ohio.

Dec. 22, 1971.

Syllabus by the Court

An order of the Industrial Commission limiting an employer's responsibility under an allowed claim 'to pay for one (1) chiropractic adjustment per month,' is not an absolute denial of the claim going to the basis of claimant's right to participate in the Workmen's Compensation Fund and, therefore, is not appealable to the Court of Common Pleas under the provisions of R.C. 4123.519. (Brecount v. Procter & Gamble Co., 166 Ohio St. 477, 144 N.E.2d 189; Carpenter v. Scanlon, 168 Ohio St. 139, 151 N.E.2d 561; State, ex rel. Mansour v. Indus. Comm., 19 Ohio St.2d 94, 249 N.E.2d 775; Reeves v. Flowers, 27 Ohio St.2d 40, 271 N.E.2d 769, approved and followed.)

In 1966, relator-appellant accidentally injured his low back in the course of his employment. His claim therefor was allowed and his right to participate in the Workmen's Compensation Fund was recognized. Subsequently, a dispute arose between relator and his employer concerning the nature and extent of chiropractic treatment for which the employer should be responsible. On September 18, 1969, the Industrial Commission ordered:

'The commission further finds that claimant's appeal be allowed to the following extent: That the employer be ordered to pay for one (1) chiropractic adjustment per month. This order does not in any way authorize the taking of X-rays, or the granting of any other form of treatment.'

Thereafter, relator filed an action in mandamus in the Court of Appeals, seeking to require respondent-appellee Industrial Commission to vacate its aforementioned order, and to order the employer 'to pay for future treatment as recommended by his (relator's) attending physician.'

The Court of Appeals denied the writ of mandamus, and the cause is before us as a matter of right.

Larrimer & Larrimer and Craig Aalyson, Columbus, for appellant.

William J. Brown, Atty. Gen., and R. Peterson Chalfant, Steubenville, for appellee.

HERBERT, Justice.

Initially, the propriety of the extraordinary remedy of mandamus in this case must be considered in light of whether appellant has a plain and adequate remedy in the ordinary course of the law. State, ex rel. Pressley v. Indus, Comm. (1971), 11 Ohio St.2d 141, 228 N.E.2d 631; State ex rel. Harris v. Haynes (1952), 157 Ohio St. 214, 105 N.E.2d 53.

R.C. 4123.519 provides for appeal from '* * * 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 * * *.'

Clear though the above quoted language may have seemed to the drafters thereof, the myriad complications of industrial injury, and legislative and administrative efforts to justly cope therewith, have resulted in diffuse efforts by litigants and courts to resolve ensuing conflicts and uncertainties. Predictably, much attention has been directed to the meaning of 'extent of disability.'

In reviewing past decisions of this court, a firm thread of consistency becomes evident. It is apparent from our prior holdings that an order of the Industrial Commission which is not an absolute denial of a claim going to the basis of a claimant's right to participate, or to continue to participate, in the Workmen's Compensation Fund is 'a decision as to the extent of disability' within the meaning of R.C. 4123.519. Carpenter v. Scanlon (1958), 168 Ohio St. 139, 151 N.E.2d 561; State ex rel. Mansour v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775; Reeves v. Flowers (1971), 27 Ohio St.2d 40, 271 N.E.2d 769.

Equally discernable from our former decisions is the deductive conclusion that an order of the Industrial Commission that determines the extent to which a claimant may participate, or continue to participate, in the Workmen's Compensation Fund under an allowed claim is also 'a decision as to the extent of disability' within the meaning of R.C. 4123.519. Brecount v. Procter & Gamble Co. (1957), 166 Ohio St. 477, 144 N.E.2d 189; State ex rel. Mansour v. Indus. Comm., supra, at page 101, 249 N.E.2d 775; Reeves v. Flowers, supra, at page 44, 271 N.E.2d 769.

Since the case at bar involves only the extent to which relator may continue to participate in the Workmen's Compensation Fund under an allowed claim, and does not concern a claim denial of the genus heretofore noted, the decision complained of is not appealable...