State ex rel. Thompson v. Industrial Commission

586 N.E.2d 1085, 63 Ohio St. 3d 287, 1992 Ohio LEXIS 391

• Court: Ohio Supreme Court
• Decided: March 18, 1992
• Docket: No. 90-2013
• Status: Published

Opinions

Per Curiam.

Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, declared appealable under R.C. 4123.519 only those decisions involving the claimant’s right to participate in workers’ compensation benefits. Having concluded in the matter currently before us that the right to participate is involved, we affirm the judgment below.

R.C. 4123.52 provides:

“ * * * No * * * finding or award in * * * any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation * * * under section 4123.56 of the Revised Code, or wages in lieu of compensation * * * except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code * * *.”

Under R.C. 4123.52, a claimant’s right to continued participation in workers’ compensation benefits ceases if disability compensation or wages in lieu thereof are not paid within six years after the date of injury. In this case, the commission found that no compensation or wages had been paid, effectively foreclosing further workers’ compensation participation.

Contrary to claimant’s representation, the right to participate/statute of limitations question must be resolved before any inquiry can be made into the merits of claimant's compensation request. Obviously, if claimant no longer may receive any workers’ compensation benefits, the presence of “some evidence” supporting temporary total disability is immaterial.

Claimant’s reliance on Felske v. Daugherty (1980), 64 Ohio St.2d 89, 18 O.O.3d 313, 413 N.E.2d 809, is misplaced. Claimant correctly notes that Felske and the present case involve substantially the same merit question. Felske, however, was not brought in mandamus but was instead before us pursuant to the allowance of a motion to certify the record. Felske does not, therefore, support claimant’s assertion that this action is properly before the court in mandamus.

For these reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Holmes, Wright and H. Brown, JJ., concur. Sweeney, Douglas and Resnick, JJ., dissent.