Seabloom Roofing & Sheet Metal Co. v. Mayfield

Douglas, J.,

dissenting. The order being appealed in the instant cause is clearly not a proper subject for appeal under R.C. 4123.519. Therefore, I dissent.

The order under review herein is one in which the Industrial Commission denied appellee’s motion for reconsideration of its previous order denying appellee relief under R.C. 4123.522. Neither the order denying reconsideration nor the previous order dealt in any way with the claimant’s basic right to participate in the State Insurance Fund. Thus, it is not appeal-able.

This court has long held that an order which is absolute, going to the basis of the claimant’s right to participate, is appealable under R.C. 4123. 519. Otherwise, an extent of disability question is presented, which is not appealable by the express terms of that statute. Reeves v. Flowers (1971), 27 Ohio St. 2d 40 , 56 O.O. 2d 22, 271 N.E. 2d 769 ; Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386 , 10 O.O. 3d 503, 384 N.E. 2d 693 . See, also, Young, Workmen’s Compensation Law of Ohio (2 Ed. 1971), Section 11.18, and cases cited therein.

The instant order is clearly not one which goes to the basis of the claimant’s right to participate. In issuing the order at bar, the commission refused to reconsider its previous order denying appellee’s motion to vacate the award of benefits to the claimant. Appellee’s motion requested relief under R.C. 4123.522 on the basis that appellee’s counsel had not received notice of the hearing as required. The commission denied this motion on the basts that the claimant’s death abated the claim. Obviously, neither this order nor the order denying reconsideration goes to the heart of the claimant’s right to participate. The claimant’s entitlement to benefits was not at issue in any way. Hence, the order is not appealable. Instead, mandamus is the appropriate procedure for testing the validity of the commission’s denial of appellee’s motion to vacate on the basis that the claimant’s death abated the claim. See Miraglia v. B.F. Goodrich Co. (1980), 61 Ohio St. 2d 128 , 15 O.O. 3d 163, 399 N.E. 2d 1234 .

The majority’s reliance on State, ex rel. O. M. Scott & Sons Co., v. Indus. Comm. (1986), 28 Ohio St. 3d 341 , 28 OBR 406, 503 N.E. 2d 1032 , is misplaced. In that case, this court stated that “[a] decision in an injury or occupational disease case which does not involve the right to participate is nevertheless appealable as long as it does not involve the extent of disability.” Id. at 344 , 28 OBR at 409, 503 N.E. 2d at 1035 . The decision under review herein was not one made “in an injury or occupational disease case.” The instant order denied appellee’s motion for reconsideration of the commission’s prior order denying appellee relief under R.C. 4123.522. The question presented to the commission by that motion was whether it erred in finding that appellee was not entitled to the relief afforded by that statute due to its counsel’s alleged failure to receive notice of the hearing held October 21,1981. That question has nothing to do with an injury or occupational disease. O.M. Scott & Sons should not be interpreted as rendering each and every interlocutory or peripheral order *114 of the Industrial Commission appealable to the common pleas court. This is surely not what the legislature intended. To allow the instant order to be taken before the common pleas court under R.C. 4123.519 unjustifiably enlarges the intended jurisdiction of that court.

Accordingly, I would reverse the judgment of the court of appeals and reinstate the judgment of the trial court, albeit on different grounds.

Moyer, C.J., and H. Brown, J., concur in the foregoing dissenting opinion.