Smith v. Krouse

Ohio Supreme Court

Smith v. Krouse

377 N.E.2d 493, 54 Ohio St. 2d 369, 8 Ohio Op. 3d 387, 1978 Ohio LEXIS 583

Ohio Supreme Court·Decided June 21, 1978·No. No. 77-1269·Published·Cited by 12 cases

Opinion

Per Curiam.

The issue presented in this appeal is whether the order of the commission finding appellant to be permanently and totally disabled “but not due to the [prior] allowed injury” constitutes an appealable order.

R. C. 4123.519 provides, in part:

“The claimant or the employer may appeal 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 * *

In a series of cases interpreting R. C. 4123.519, it has been held that “* * * it is an order constituting a ‘denial that is absolute going to the basis of claimant’s right’ that is appealable.” Reeves v. Flowers (1971), 27 Ohio St. 2d 40, 43, 271 N. E. 2d 769; State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St. 2d 94, 249 N. E. 2d 775; State, ex rel. Campbell, v. Indus. Comm. (1971). 28 Ohio St. 2d 154, 277 N. E. 2d 219; State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St. 2d 278, 328 N. E. 2d 387; State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St. 2d 389, 329 N. E. 2d 102; State, ex rel. General Motors, v. Indus. Comm. (1975), 44 Ohio St. 2d 46, 337 N. E. 2d 782; Ford Motor Co. v. Mosijowsky (1975), 44 Ohio St. 2d 109, 338 N. E. 2d 762; Mooney v. Stringer (1976), 48 Ohio St. 2d 375, 358 N. E. 2d 612.

Inasmuch as appellant’s right; to participate in the [371] fund has been established, “ ** * the case at bar involves only the extent to which * * * [appellant] may continue to participate in the Workmen’s Compensation Fund under an allowed claim.” It “does not concern” an “absolute denial of a claim going to the basis of * * * [appellant’s] right to participate, or to continue to participate, in the * * * Fund.” State, ex rel. Campbell, supra, at page 156. Thus, the order of the commission is not appealable to the Court of Common Pleas under R. C. 4123.519.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O ’Neill, C. J., Herbert, Celebrezze, W. Brown. P. Brown, Sweeney and Loches, JJ., concur.

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Per Curiam.

The issue presented in this appeal is whether the order of the commission finding appellant to be permanently and totally disabled “but not due to the [prior] allowed injury” constitutes an appealable order.

R. C. 4123.519 provides, in part:

“The claimant or the employer may appeal 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 * *

In a series of cases interpreting R. C. 4123.519, it has been held that “* * * it is an order constituting a ‘denial that is absolute going to the basis of claimant’s right’ that is appealable.” Reeves v. Flowers (1971), 27 Ohio St. 2d 40, 43, 271 N. E. 2d 769; State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St. 2d 94, 249 N. E. 2d 775; State, ex rel. Campbell, v. Indus. Comm. (1971). 28 Ohio St. 2d 154, 277 N. E. 2d 219; State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St. 2d 278, 328 N. E. 2d 387; State, ex rel. Commercial Motor Freight, v. Stebbins (1975), 42 Ohio St. 2d 389, 329 N. E. 2d 102; State, ex rel. General Motors, v. Indus. Comm. (1975), 44 Ohio St. 2d 46, 337 N. E. 2d 782; Ford Motor Co. v. Mosijowsky (1975), 44 Ohio St. 2d 109, 338 N. E. 2d 762; Mooney v. Stringer (1976), 48 Ohio St. 2d 375, 358 N. E. 2d 612.

Inasmuch as appellant’s right; to participate in the [371] fund has been established, “ ** * the case at bar involves only the extent to which * * * [appellant] may continue to participate in the Workmen’s Compensation Fund under an allowed claim.” It “does not concern” an “absolute denial of a claim going to the basis of * * * [appellant’s] right to participate, or to continue to participate, in the * * * Fund.” State, ex rel. Campbell, supra, at page 156. Thus, the order of the commission is not appealable to the Court of Common Pleas under R. C. 4123.519.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O ’Neill, C. J., Herbert, Celebrezze, W. Brown. P. Brown, Sweeney and Loches, JJ., concur.

Smith v. Krouse, 377 N.E.2d 493, 54 Ohio St. 2d 369, 8 Ohio Op. 3d 387, 1978 Ohio LEXIS 583 (Ohio 1978).

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Opinion

R. C. 4123.519 provides, in part:

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