Skiba v. Connor

Clifford F. Brown, J.,

dissenting. I dissent for the following reasons. The court notes in its opinion that R.C. 4123.522 is a strictly intra-agency remedy which has no effect on the rights of a claimant to appeal an order of the Industrial Commission to a court of common pleas. This holding is proper. However, the court then fails to consider the wording of the July 24,1980 order sent by the commission pursuant to a motion by the plaintiff-appellant’s attorney. The order stated in relevant part: “[t]he widow-claimant [plaintiff] is granted relief under Section J+123.522 R.C. ” (Emphasis added.) In light of the court’s proper holding that R.C. 4123.522 is strictly an intra-agency remedy, the plain meaning of the July 24, 1980 order was that plaintiff was given leave to appeal the decision of the commission in an intraagency appeal.

The next step taken by the plaintiff’s counsel was to file an intra-agency appeal to the Industrial Commission. The commission refused to hear this appeal on August 26, 1980. It is from this final order that plaintiff’s counsel filed an appeal on October 15, 1980, well within the sixty-day period of appeal granted by R.C. 4123.519. The plaintiff was unable to appeal the order of the Industrial Commission until after the August 26, 1980 order in light of the July 24, 1980 order’s grant of authority for the plaintiff to file an appeal pursuant to R.C. 4123.522. This court in Cadle v. General Motors Corp. (1976), 45 Ohio St. 2d 28 [74 O.O.2d 50], held in paragraph one of the syllabus: “The mandatory appeal requirements of R.C. 4123.519 provide the only manner in which an appeal of the decision of the Industrial Commission to the Court of Common Pleas may be perfected, and such provisions are jurisdictional and must be strictly and fully complied with in order to vest jurisdiction in the Court of Common Pleas.” (Emphasis added.) In light of this recent holding it was impossible for the plaintiff to file an appeal from the notice she received on July 26, 1980 which directed a R.C. 4123.522 appeal be taken by plaintiff. It was not until she received the August 26, 1980 decision that plaintiff was able to perfect a proper R.C. 4123.519 appeal.

For the foregoing reasons I would reverse the judgment of the court of appeals and remand this cause.

J. P. Celebrezze, J., concurs in the foregoing dissenting opinion.