State ex rel. Dodson v. Industrial Commission

• Court: Ohio Supreme Court
• Writing for the Court: PER CURIAM; CELEBREZZE
• Citation: State ex rel. Dodson v. Industrial Commission, 390 N.E.2d 1189, 58 Ohio St.2d 399 (Ohio 1979)
• Decision Date: 20 June 1979
• Docket Number: No. 78-469,78-469
• Parties: , 12 O.O.3d 345 The STATE ex rel. DODSON, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.

Page 399

58 Ohio St.2d 399

390 N.E.2d 1189, 12 O.O.3d 345

The STATE ex rel. DODSON, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.

No. 78-469.

Supreme Court of Ohio.

June 20, 1979.

On June 12, 1964, appellant, Elizabeth S. Dodson, sustained an accidental injury to her left knee and contusion of her right shoulder and arm while in the course of her employment with National Acme Company. Appellant filed a claim with the Bureau of Workers' Compensation and was paid temporary total disability compensation. On December 1, 1967, the Industrial Commission (commission) determined that appellant had a 15 percent permanent partial disability.

On June 18, 1971, appellant filed an application for an amendment to her claim alleging that she suffered from hypertrophic arthritis in her left knee and right shoulder prior to and aggravated by the accidental injury which occurred in 1964. This application was subsequently allowed by the commission. National Acme Company appealed to the Court of Common Pleas of Cuyahoga County, which entered judgment on February 21, 1975, overruling the commission and finding that the prior allowed injury did not aggravate any pre-existing condition of hypertrophic arthritis of the left knee or right shoulder.

On March 1, 1977, the commission, acting on appellant's motion for permanent and total disability filed December 24, 1973, found "that the claimant (appellant) is permanently and totally disabled but not as the result of the allowed injuries in this claim * * *."

On April 26, 1977, appellant filed an appeal in the Court of Common Pleas of Cuyahoga County, pursuant to R.C. 4123.519. ^*

In December 1977, appellant filed a complaint in mandamus in the Court of Appeals for Franklin County seeking to compel the commission to vacate its order of March 1, 1977, and to find that appellant was permanently and totally disabled.

National Acme Company filed a motion to dismiss the complaint in mandamus for failure to state a claim, in that appellant's filing of her statutory appeal with the Court of Common Pleas on April 26, 1977, constitutes a plain and adequate remedy in the ordinary course of the law.

The Court of Appeals sustained National Acme's motion and dismissed appellant's complaint without prejudice.

This cause is now before this court upon appeal as a matter of right.

Edward J. Cox Co. L. P. A., Edward J. Cox, Sr., Columbus, Bustamante, Donohoe & Palmisano Co., L. P. A., John H. Bustamante, Cleveland, and Harry R. Paulino, Columbus, for appellant.

William J. Brown, Atty. Gen., and Solomon Hertzel Basch, Asst. Atty. Gen., for appellee Industrial Commission.

Thompson, Hine & Flory, Arthur F. Zalud and Matthew J. Hatchadorian, Cleveland, for appellee National Acme Co.

PER CURIAM.

The sole issue before this court is whether the pending appeal filed by appellant in the Court of Common Pleas constitutes a plain and adequate remedy and, thus, precludes the Court of Appeals from entertaining appellant's complaint in mandamus. State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 33, 372 N.E.2d 339.

In paragraph one of the syllabus in Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 384 N.E.2d 693, this court held the following:

"An order of the Industrial Commission which Either denies or allows a claimant the right to participate in the Workers' Compensation Fund for injury to a specific part or parts of the body involving loss or impairment of bodily functions on...