I concur basically in the judgment and opinion but would add the following. In construing R.C. 4123.519(E), the General Assembly has mandated in R.C. 4123.95 that "Sections 4123.01 to4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees."
R.C. 4123.519(E) reads as follows:
"The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the effort expended,in the event the claimant's right to participate or to continueto participate in the fund is established upon the finaldetermination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer contested the right of the claimant to participate in the fund. The attorney's fee shall not exceed twenty-five hundred dollars." (Emphasis added.)
We need not stop to determine what the General Assembly intended by the words "legal proceedings." That question was resolved by the Ohio Supreme Court in the syllabus inHospitality Motor Inns, Inc. v. Gillespie (1981), 66 Ohio St. 2d 206, 20 O.O.3d 209, 421 N.E.2d 134. Rather, the dispositive issue is what *Page 496 was intended by the language emphasized above, i.e., "in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal."
In adopting the present statutory scheme for court review of administrative orders in the Workers' Compensation Act, the General Assembly provided, inter alia, in R.C. 4123.519(C) the following:
"The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimantto participate or to continue to participate in the fund upon the evidence adduced at the hearing of the action." (Emphasis added.)
The right of an employee to participate or continue to participate is the ultimate and sole issue for resolution by the court. Smith v. Young (1963), 119 Ohio App. 176, 26 O.O.2d 405,197 N.E.2d 835. While there will be subordinate disputed issues in the appeal, i.e., whether the claimant was an employee, whether he suffered an injury, whether the injury was in the course of employment, etc., the jury or court determines the statutory issue set forth above.
Appellant argues that the General Assembly intended to allow attorney fees only when the appeal fully resolves the right to participate in the fund without further action at the administrative level. I disagree with that narrow construction for the following reasons.
First, it is to be noted the identical phrase "participate or to continue to participate in the fund" appears in both R.C.4123.519(E) and R.C. 4123.519(C). Manifestly these subsections are both a part of R.C. Chapter 4123, and are in pari materia, and thus it is reasonable to presume the same meaning was intended in each. Henry v. Trustees (1891), 48 Ohio St. 671,30 N.E. 1122; Rhodes v. Weldy (1889), 46 Ohio St. 234, 20 N.E. 461. In enacting the statutory scheme for appeal and allowance of attorney fees, the General Assembly was presumably aware that court appeals would be taken from administrative orders where the right of full participation in the fund had not yet been administratively allowed, as occurred in the case sub judice.
Since, under the statutory issue in R.C. 4123.519(C), a disposition by a judgment or order finding upon a subsidiary issue, i.e., that the claim was timely filed, would be improper, only a right to participate in the fund should be adjudicated in the order. Thus, there has been a right to participate in the fund upon the final determination of the appeal, albeit further proceedings must be held on other issues to establish the right to compensation, and it follows that attorney fees were properly awarded pursuant to R.C. 4123.519(E).
In sum, and consistent with the mandate of liberal construction in R.C. 4123.95, I hold that the General Assembly intended the recovery of attorney fees when an *Page 497 injured worker prevails in an employer appeal, irrespective of whether further proceedings on other issues than the one appealed are required on remand to establish the right to benefits. In short, when the employee prevails on the sole disputed issue in the appeal, he has established "a right to participate in the fund" on that issue. To hold otherwise would be to require the injured worker to expend nonrecoverable attorney fees to protect his claim even though he prevailed at both the administrative and court levels. As stated inHospitality Motor Inns, supra, 66 Ohio St.2d at 213, 20 O.O.3d at 213, 421 N.E.2d at 138, "[h]aving sought the benefits of R.C.4123.519, appellant can not now be heard to complain of the detriments following therefrom."
Hence, my concurrence.