State ex rel. Mansour v. Industrial Commission

• Decision Date: 09 July 1969
• Docket Number: No. 69-69,69-69
• Citation: 249 N.E.2d 775,19 Ohio St.2d 94
• Parties: , 48 O.O.2d 98 The STATE ex rel. MANSOUR, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.
• Court: Ohio Supreme Court

Page 94

19 Ohio St.2d 94

249 N.E.2d 775, 48 O.O.2d 98

The STATE ex rel. MANSOUR, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.

No. 69-69.

Supreme Court of Ohio.

July 9, 1969.

Syllabus by the Court

1. A rule of the Industrial Commission, which provides that a claimant desiring to change an election between divisions (A) and (B) of Section 4123.57, Revised Code, will not be granted the change where the claimant was 'represented' at the time of the exercise of the election is in conflict with the provision of Section 4123.57, Revised Code, that such election may be changed upon approval of the Industrial Commission 'for good cause shown,' and is therefore unreasonable and unenforceable.

2. An order of the Industrial Commission refusing to allow a change of election for payment of compensation from division (B) to division (A) of Section 4123.57, Revised Code, is not a decision other than the extent of disability, appealable to the Court of Common Pleas under the provisions of Section 4123.519, Revised Code.

Relator, on February 23, 1966, received a compensable injury to his left elbow. The injury was diagnosed as a sprain of the left elbow, with radial epicondylitis. Following an operation to the elbow, relator returned to work on October 31, 1966.

On August 8, 1967, relator filed an application for a determination of the percentage of permanent partial disability. The Industrial Commission determined this disability to be ten per cent. On October 24, 1966, believing that he would be able to return to his regular job, he filed an election to be compensated for the percentage of partial disability under Section 4123.57 (B), Revised Code, and received $980.

Prior to the injury, relator worked as a die cast operator, and after the injury he was unable to return to that position and was given a job as an inspector. He alleges that this job change has resulted in an impairment of his earning capacity. On November 13, 1967, after learning that he could not work as a die cast operator, he filed a motion to change his election from division (B) to division (A) of Section 4123.57, Revised Code, as provided for under that statute.

Before hearing, on relator's motion an attorney-examiner, employed by the commission, made the following report which in part reads:

'The commission's rules pertaining to applications for the determination of percentage of permanent partial disability (paragraph 7) provide that a motion to change election must be made within three months of the filing of the election and will not be granted where the claimant was represented when he made his election.

'RECOMMENDATION:

'That the motion filed November 13, 1967 be denied for the reason that such procedure is not indicated.'

The commission's order entered on February 20, 1968, is as follows:

'That the motion filed November 13, 1967 be denied for the reason that such procedure is not indicated.'

Relator brought this action in the Court of Appeals, praying for a writ of mandamus requiring the Industrial Commission to hear his claim without reference to Rule 15(C) 7 of the Industrial Commission. The Court of Appeals denied the writ on the basis that the decision complained of was appealable under Section 4123.519, Revised Code, citing this court's decision in State ex rel. Foley v. Greyhound Lines, 16 Ohio St.2d 6, 241 N.E.2d 904.

The cause is before this court upon an appeal as a matter of right.

Harold Ticktin, Cleveland, for appellant.

Paul W. Brown, Atty. Gen., Walter J. Howdyshell and James Maurer, Columbus, for appellee.

DUNCAN, Judge.

A major contribution to the confusion presented in this appeal is the ambiguity of the order of the Industrial Commission in which relator's motion for a change of election was denied, i. e., 'for the reason that such procedure is not indicated.' The commission argues in its brief that the motion was denied because relator 'failed to show good cause for his request to change election.' Apparently the court below did not arrive at a similar conclusion, for in its per curiam opinion that court clearly stated that '(t)he commission refused to grant the motion because of the commission's Rule 15(C)7.' Although the ambiguity of the order and the paucity of facts of record to illuminate its darkness may well be a sufficient basis for granting relator relief, we will take incentive from the other latent problems presented, rely on the findings of fact of the court below, and make a judgment which will be more relevant.

The rule that mandamus will not lie to control a court's discretion, unless it be clearly shown that the refusal to perform the desired act is an abuse of such discretion, is well chronicled by prior decisions of this court. Equally well impressed in our decisions is the denial of such relief because of the availability of an adequate legal remedy. See State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631, and cases cited therein.

Section 4123.519, Revised Code, provides for an appeal to the Court of Common Pleas in any injury case, other than a decision as to the extent of disability. In workmen's compensation cases, this court has been keen to preserve the extraordinary remedy of mandamus as well as to require utilization of the statutory appeal. See State ex rel. Ferris v. Indus. Comm., 17 Ohio St.2d 49, 245 N.E.2d 357; State ex rel. Foley v. Greyhound Lines, 16 Ohio St.2d 6, 241 N.E.2d 904; State ex rel. Latino v. Indus. Comm., 13 Ohio St.2d 103, 234 N.E.2d 912; State ex rel. Benton v. C. & So. Ohio Elec. Co., 14 Ohio St.2d 130, 237 N.E.2d 134; Carpenter v. Scanlon, 168 Ohio St. 139, 151 N.E.2d 561. See State ex rel. Federated Dept. Stores Inc., v. Brown, 165 Ohio St. 521, 138 N.E.2d 248.

The large number of cases decided by this court determining what is included within the 'extent of disability,' as those words are used in Section 4123.519, Revised Code, attests to the fact that in the galaxy of decisions of the Industrial Commission some do not easily come to rest in assigned legal grooves. As we view it, such is the case at bar.

Section 4123.57, Revised Code, provides, inter alia, in division (A), for the payment of compensation based upon an impairment of earning capacity resulting from injury. Under division (B), the Industrial Commission determines the percentage of permanent disability based upon the condition of the employee resulting from the injury and pays compensation accordingly. That statute also provides that the employee may elect as between (A) and (B) as to the manner of receiving the compensation, and that the election filed by the employee may be changed upon approval of the Industrial Commission for good cause shown.

The obvious implicit question is presented whether a decision by the Industrial Commission upon an application to change an election from Section 4123.57(B) to 4123.57(a) is other than a decision as to the extent of disability.

In the case of Miles v. Electric Auto-Lite Co., 133 Ohio St. 613, at page 616, 15 N.E.2d 532, at page 534, the court stated:

'It has been recognized from the beginning that the Industrial Commission, in its administration of the Workmen's Compensation Law, is not to be regarded as an adversary of the claimant as in other litigation. As was well said by Nichols, C. J., in Roma v. Industrial Commission, 97 Ohio St. 247, at page 252, 119 N.E. 461, at page 463: 'The state of Ohio, by the very terms of the law, becomes in fact the representative, if not the champion of the claimant, to the extent of seeing that exact justice is done him; and it is quite manifestly the intention of the law that the ordinary rules of procedure, although wise and fair in the abstract must give way, if, in adhering to them, any conclusion even savoring of injustice would result.'

'As a further indication of the character of the proceedings had in an Industrial Commission case, we need only point to the fact that after trial is had in Common Pleas Court to 'determine the right of the claimant to participate,' if the verdict be in favor of the claimant, the proceedings are returned to the jurisdiction of the Industrial Commission to determine the extent of disability and amount of compensation to be awarded therefor. In other words, the entire proceedings, while subject to the rules and regulations provided by law, should be so administered as 'to carry out justly the spirit' of the law as required by Section 1465-91, General Code.'

The above-quoted language emphasizes that the administration of the Workmen's Compensation Act must complement its spirit. The court noted that the duty of the Industrial Commission, after a court decision, is to determine (1) the extent of disability and (2) amount of compensation to be awarded therefor. We believe the basic spirit of the law now to be the same under the provisions of Section 4123.519 and Section 4123.57, Revised Code.

In Carpenter v. Scanlon, 168 Ohio St. 139, 151 N.E.2d 561, it was argued that a finding that 'the arthritic condition is not related to (the) injury' was not appealable under Section 4123.519. The court stated:

'The finding of the administrator that 'the claimant's generalized arthritic involvement is not related to or the result of the injury in this claim, and, therefore, payment of compensation or for medical services for the treatment of said condition is not authorized,' is clearly not 'a decision as to the extent of disability' but rather a finding that the arthritic condition of claimant was not a disability resulting from the injury-an absolute denial of the claim on a jurisdictional ground going to the basis of claimant's...