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stating that "[a]n available administrative remedy precludes mandamus" and noting that the appellant could have, but did not, appeal a DHO order terminating her disability compensation, but also stressing that the case was distinguishable from one where a new period of disability was being alleged pursuant to the commission's continuing jurisdiction
Summary of this case from State ex rel. KPGW Holding Co. v. Indus. Comm'n of OhioOpinion
No. 89-311
Submitted June 5, 1990 —
Decided August 29, 1990.
Workers' compensation — Failure to appeal denial of compensation precludes action in mandamus.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-827.
Appellant, Alcenia Reeves, began receiving temporary total disability compensation on May 7, 1985 for injuries sustained in the course of and arising from her employment with the Greater Cleveland Regional Transit Authority ("RTA"). RTA eventually asked the appellee Industrial Commission ("commission") to terminate her compensation for temporary total disability, alleging that appellant could return to her former position of employment. On February 27, 1986, a commission district hearing officer terminated temporary total disability compensation as of February 4, 1986 based on the reports of Drs. Brooks and Nagelis. Appellant did not appeal.
After the appeal period had expired, appellant applied to reactivate her claim, requesting additional compensation and treatment. On June 17, 1986, appellant apparently returned to work. Two days later, she was dismissed. RTA's "discipline or commendation report" stated:
"Discharge Due to Medical Reasons. Eff. 6-19-86. Operator Reeves has been off Sick Since 3-14-86 and was Returned to me from personnel on 6-17-86 and Placed In training on 6/19/86. On this date the Training Dept. Disqualified the operator for being physically Incapable of Performing her duties. * * *"
Appellant's application to reactivate her claim was denied as to additional compensation. On appeal, the denial was affirmed on June 10, 1987 by staff hearing officers who found that appellant was not totally disabled. That order was based on the reports of Drs. Nagelis, Brooks and Maggiore.
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission abused its discretion by denying temporary total compensation from February 4, 1986 through April 1, 1987. The court found "some evidence" supporting the denial and denied the writ.
Appellant now appeals to this court as of right.
Mary Jo Cusack, for appellant.
Edward J. Opett and Dan T. Pribich, for appellee Greater Cleveland Regional Transit Authority.
Anthony J. Celebrezze, Jr., attorney general, Jenice R. Golson and Michael L. Squillace, for appellee Industrial Commission.
In asserting an abuse of discretion, appellant cites contrary medical evidence and the commission's failure to determine whether the physical incapacity cited in the RTA discharge slip was related to the allowed condition. However, because appellant failed to pursue an adequate remedy at law, we find it unnecessary to address these claims.
An available administrative remedy precludes mandamus. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225; State, ex rel. Schindel, v. Rowe (1971), 25 Ohio St.2d 47, 54 O.O. 2d 173, 226 N.E.2d 569. Appellant received temporary total disability compensation from May 7, 1985 to February 4, 1986. She alleges that she was temporarily and totally disabled from February 4, 1986 through April 1, 1987. She thus claims one continuous period of disability from May 7, 1985 through April 1, 1987. This continuum was broken initially by the February 27, 1986 order of the district hearing officer, not the June 10, 1987 final denial of appellant's application to reactivate. Appellant could have, but did not, appeal the earlier order which had refused to extend compensation over the period at issue.
We stress that this case is distinguishable from one in which a new period of disability is being alleged pursuant to the continuing jurisdiction provisions of R.C. 4123.52. The effect of reactivating appellant's claim here, however, in light of the single period of disability involved, would be to circumvent her failure to appeal the denial of compensation by reinstating compensation as of the prior termination date.
For the reasons stated above, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.