State ex rel. Foley v. Greyhound Lines, Inc., 68-113
| Decision Date | 13 November 1968 |
| Docket Number | No. 68-113,68-113 |
| Citation | 16 Ohio St.2d 6,241 N.E.2d 904 |
| Parties | , 45 O.O.2d 223 The STATE ex rel. FOLEY, Appellee, v. GREYHOUND LINES, INC., et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where, under Section 4123.519, Revised Code, an appeal by an injured workman from an adverse determination of the Industrial Commission is available and adequate, he may not resort to an action in mandamus to enforce his claimed rights. (Paragraph one of the syllabus of State, ex rel. Sibarco Corp., v. City of Berea, 7 Ohio St.2d 85, 218 N.E.2d 428, and the first paragraph of the syllabus of State, ex rel. Benton v. C. & So. O. Elec. Co., 14 Ohio St.2d 130, 237 N.E.2d 134, followed.)
This action in mandamus originated in the Court of Appeals for Franklin County, wherein relator Foley sought a writ under the provisions of Section 4123.57(C), Revised Code, requiring the Industrial Commission to compensate him, on the basis of permanent partial disability, for the loss of his left leg and foot by amputation some six inches below the knee.
The Court of Appeals overruled a demurrer to the petition, entertained the action on its merits and allowed the writ in accordance with the prayer of Foley's petition.
An appeal as of right brings the cause here for decision.
Clayman, Jaffy & Taylor and Stewart R. Jaffy, Columbus, for appellee.
Knepper, White, Richards & Miller, William E. Knepper and Thomas E. Palmer, Columbus, for appellant Greyhound Lines, Inc.
William B. Saxbe, Atty. Gen., Walter J. Howdyshell and Mr. J. William Petro, Columbus, for appellants Jay C. Flowers, Adm., Bureau of Workmen's Compensation, and the Industrial Commission.
In January 1963, Foley, an employee of Greyhound Lines, Inc., in the course of and arising out of his employment, sustained injuries to his back, to his shoulder and to his ankle in the same accident. His claim for compensation was allowed by the Industrial Commission, and he was awarded compensation, first, on the basis of temporary total disability, then, in May 1965, on the basis of permanent total disability, under the provisions of Section 4123.58, Revised Code, which later award he is still being paid.
After the amputation referred to, which was attributable to Foley's January 1963 injuries, he filed an application to reactivate his original claim and to be paid additional compensation for permanent partial disability under Section 4123.57(C), Revised Code, for the loss of his left foot.
At first, such application was approved and granted by the deputy administrator and the additional award made, but, on reconsideration, this order was vacated by the administrator on the ground that the deputy administrator lacked authority to grant any award under Section 4123.57(C), since Foley was already being paid the maximum award for permanent total disability. The order of the administrator was affirmed by the Columbus Regional Board of Review.
An appeal to the Industrial Commission was denied, the commission taking the position that, because Foley was already being paid the maximum award permitted by law under Section 4123.58, Revised Code, he was not entitled to more.
Could Foley properly resort to an action in mandamus in the Court of Appeals to accomplish his objective?
The demurrer to the petition in mandamus was based on the ground that the Court of Appeals had no jurisdiction of the subject matter of the action. That demurrer was overruled, and the court proceeded to decide the controversy in Foley's favor.
In the mandamus case of State, ex rel. Latino, v. Indus. Comm., 13 Ohio St.2d 103, 234 N.E.2d 912, it was held that an injured workman in the circumstances presented was entitled to an award for permanent partial disability due to injuries sustained in a fall and was also entitled to an award...
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