State Ex Rel. Sears, Roebuck & Co. v. Industrial Commission

On Motion to Dismiss Norris, J. This matter is before us on the motion of respondent Dana E. Ar-trip seeking alternative relief: (1) dismissal of this original action in mandamus due to relator’s failure to comply with the requirement of R.C. 4123.519 that it pay to Artrip, during the pendency of this action, the compensation previously awarded him by respondent Industrial Commission, or (2) an order requiring relator to pay that compensation. However relator, Sears, Roebuck & Company, contends that the payment requirement of R.C. 4123.519 applies only in situations where an employer has appealed an award to the court of common pleas. We disagree. [256] The language in dispute, found in R.C. 4123.519, reads as follows: “An appeal from a decision of the commission or any action filed in a case in which an award of compensation has been made shall not stay the payment of compensation under such award or payment of compensation for subsequent periods of total disability during the pendency of the appeal. * * *” (Emphasis added.) Actually, the duty of relator to continue to pay compensation to respondent Artrip arises not from any language in R.C. 4123.519, but instead from the requirement found in R.C. 4123.515 that compensation will be paid once administrative appeals have been exhausted. Here, appeals to the Regional Board of Review and to the commission have been exhausted. R.C. 4123.519 merely points out that the duty to pay imposed by R.C. 4123.515 is not stayed should the claim be considered beyond the administrative level. The clause in R.C. 4123.519 emphasized above was inserted by the General Assembly in 1976 by specific amendment in Am. Sub. S.B. No. 545, effective January 17, 1977 (see 136 Ohio Laws, Part I, 1075, 1155-1157). Because of the amendment, it is now clear that not only is payment of compensation to continue during the pendency of a court appeal taken from a decision of the commission, but, in addition, it is also to continue during the pendency of an action in mandamus or of any other action filed to challenge the commission’s decision. However, respondent Artrip’s proper remedy in seeking enforcement of R.C. 4123.515 is to seek from the commission an order requiring relator to pay the compensation as mandated by statute. Only in the event that the commission fails to perform its clear legal duty to order payment of compensation would a remedy be available in this court. We must, of course, assume that the commission will perform its clear legal duty. Accordingly, the motion is overruled. Motion overruled. Whiteside, P.J., and Moyer, J., concur.