concurring. I agree with the majority there was sufficient evidence for the commission' to determine the claimant’s period of disability did not result from his industrial injury. In my view, however, the claimant had an adequate remedy at law by way of appeal. I, therefore, would also deny the writ of mandamus as not proper in this case.
An order of the Industrial Commission which determines a claimant’s impairment “is not the result of a compensable injury” is a decision as to the claimant’s right to participate in the Workers’ Compensation Fund and is, therefore, appealable pursuant to R.C. 4123.519. Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386 [10 O.O.3d 503]. Inasmuch as the commission decided, in the case at bar, that the claimant’s disability was not the result of his industrial injury, and thus not compensable, the commission’s decision determined the claimant’s right to participate in the fund. The claimant could thus have appealed the commission’s decision under R.C. 4123.519.
This court’s recent decision in Gilbert v. Midland-Ross Corp. (1981), 67 Ohio St. 2d 267 [21 O.O.3d 168], is indistinguishable from the case subjudice. The syllabus in Gilbert states:
“1. A decision of the Industrial Commission which goes to a claimant’s right to participate in the fund is appealable; however, a decision which merely extends the period of time for which a claimant will receive benefits concerns the extent of disability and is not appealable.
“2. A decision to reactivate a previously allowed claim now dormant, when there has been an intervening trauma, is, in effect, a decision going to claimant’s right to participate in the fund for an injury or impairment not previously claimed or passed upon and is appealable.”
Since the commission in the instant case decided not to reactivate a previously allowed claim because the claimant’s disability was due to an intervening trauma and not due to a previously compensated injury, the commission’s decision went to the claimant’s right to participate in the fund, and this case falls squarely within the rule stated in Gilbert.
As the commission has conceded, “this case is directly on point with the relevant facts presented in Gilbert * * *.” In Gilbert and the instant case:
(1) both claimants had returned to work following a period of disability attributable to a compensable injury;
(2) both claimants suffered a second injury;
(3) neither claimant was receiving disability at the time of the second injury;
*102(4) there was no existing period of disability but only a previous period of disability;
(5) both claimants requested compensation for the period of disability following the second injury; and
(6) the commission was faced with a determination of whether the claimant’s disabilities were attributable to the first or second injury.
The only difference between the two cases is the setting of the second injury. In Gilbert, the second injury occurred at work, whereas, in the case sub judice, the second injury occurred at home. This difference is irrelevant because in both cases the commission was presented with precisely the same issue, i.e., whether the disability was attributable to claimant’s first or second injury. In Gilbert, the commission decided the second period of disability was attributable to the first injury, whereas in the case sub judice they did not. Nevertheless, in both cases, the commission was called upon to decide the identical question of causation, and the underlying theories are exactly the same.
As this court stated in Gilbert at page 271: “The decision in the instant case, though in form a reactivation of a previously allowed claim, is in substance a decision on the right to participate in the fund because it establishes a new period of disability with a new right to receive benefits. Interpreting the commission’s order as merely extending the period of disability, as appellants would have us do, ignores the fact that appellant Gilbert was not disabled and not receiving any benefits at the time of the second injury.” This reasoning applies with equal force in the instant case. Since the claimant here was not disabled or receiving any benefits at the time of his second injury, his second claim sought to establish a new period of disability and a new right to receive benefits. The commission’s decision to disallow the claim was thus a decision to deny the claimant’s right to participate in the fund.
It is clear this court’s decision in Gilbert is directly on point with the case sub judice, and the result reached in the instant case should be the same in order to be consistent with Gilbert. For this reason, I would hold the claimant had an adequate remedy at law and mandamus is, therefore, not a proper remedy under the circumstances of this case.
Holmes, J., concurs in the foregoing concurring opinion.