Opinion
No. 36971
Decided May 24, 1961.
Workmen's compensation — Occupational disease claim allowed by administrator — Appeal by employer to regional board — Notice of appeal — Prohibition — Writ not available to restrain board from considering appeal, when.
IN PROHIBITION.
Relator filed with the Industrial Commission an occupational disease claim which was disallowed. He returned to work with the same employer at less hazardous work. He became progressively worse, and a diagnosis resulted in a finding of total disability on account of silico-tuberculosis. He thereafter filed a new claim for compensation for occupational disease. The claim was allowed by the administrator, and compensation was ordered to be paid. Thereafter, relator's employer filed what was labeled a "motion" requesting "that the claim be further considered by the bureau," and "that this claim be charged to the Surplus Fund if it is allowed." The commission construed the document to be a notice of appeal and assigned the claim to be heard by the Cleveland Regional Board of Review.
Relator then instituted the instant action in prohibition in this court seeking to restrain the respondents, the members of the Industrial Commission, the members of the Cleveland regional board and the administrator, from further proceeding in the cause, contending that the document filed by the employer did not contain the necessary elements to be construed as a notice of appeal, and that the regional board was without jurisdiction to entertain an appeal in the cause.
Mr. George A. Nelson, for relator.
Mr. Mark McElroy, attorney general, Mr. William G. Carpenter and Mrs. Mary Spivey Durham, for respondents.
Although this court has often held that, where a right of appeal is given from an order of an administrative agency, such right must be exercised in strict compliance with the procedure prescribed therefor, those decisions have dealt with appeals from administrative agencies to courts and not with interdepartmental appeals.
The administrative agency here has treated the form filed as sufficient to constitute a notice of appeal to the board of review. The question to be determined on that appeal goes to the right of the relator to participate further under the Workmen's Compensation Act. There is no showing here that, on appeal, the claim of relator for occupational disease participation will be denied, and so there is no showing, at this point, that relator has been, or necessarily will be, injured. In the event his claim should be denied by the board of review, he has available to him the remedy of appeal to the Industrial Commission.
Relator has failed to show a clear right to the high prerogative writ of prohibition, and the writ is, therefore, denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.