dissenting. I must dissent from today’s decision because, in my view, an appeal to the court of common pleas under R.C. 4123.519 abates upon the death of the claimant.
The right to appeal a ruling of the Industrial Commission to the court of common pleas is purely a creation of statute and, as such, the scope of such an appeal is defined entirely by statute. As this court stated in Cadle v. General Motors Corp. (1976), 45 Ohio St. 2d 28, 33 [74 O.O.2d 50]:
“[I]t must be borne in mind that a litigant has no inherent right of appeal in this area and that the statutory enactment of the Workmen’s Compensation Act created a special right of appeal where none existed before, and ‘[w]here a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.’ ”
We have held that the claimant bears the burden of going forward as well as the burden of proof in an appeal under R.C. 4123.519. See, e.g., Zuljevic v. Midland-Ross (1980), 62 Ohio St. 2d 116, 118 [16 O.O.3d 140]. This is true regardless of whether the claimant or employer prevailed in the administrative proceeding. As we stated in Zuljevic, supra, at 118:
“[W]here an employer appeals an unfavorable administrative decision to the court the claimant must, in effect, re-establish his worker’s compensation claim to the satisfaction of the common pleas court even though the claimant has previously satisfied a similar burden at the administrative level.”
As a result, upon the death of the claimant, the party who had the burden of going forward and the burden of proof is no longer a party to the proceeding. Moreover, there is no party left that has the same or similar interest as that of the claimant. The majority concedes as much in footnote 3 by acknowledging that the claimant’s estate will not be substituted as a party to represent the claimant and pursue the appeal. Nonetheless, the majority fashions a legislative-type remedy by naming the state to stand in the stead of the deceased claimant. The majority reasons that the state’s interest in preservation of the surplus fund enables the state to assume the claimant’s burdens in an appeal pursuant to R.C. 4123.519. Such a remedy is flawed in several respects.
First, the employer’s right to appeal, being statutory in origin, is governed by the terms of R.C. 4123.519. There is no provision in R.C. 4123.519 for substituting the state as the party upon which the burden of proof falls. *74By ordering the state to pursue the claimant’s right to participate in the fund, the majority has read a provision into R.C. 4123.519 that simply does not exist. The question of whether the state may be required to assume the claimant’s role in an appeal under R.C. 4123.519 is one within the dominion of the General Assembly, not the judiciary.
Second, in requiring the state to proceed in the place of the deceased claimant, the majority relies on the state’s incentive to preserve the surplus fund. If the claimants herein had survived, their motive in pursuing the appeal would have been to secure their continuing participation in the fund. Without question, the state’s interest in an appeal pursuant to R.C. 4123.519 does not mirror the interest of a living claimant. Moreover, if a pending appeal in the court of common pleas is held to abate upon claimant’s death, there is no possibility that the employer will prevail and recover an amount from the surplus fund. If the preservation of the surplus fund is truly the majority’s objective, the majority has ignored the fact that to allow an appeal to continue after the death of the claimant does not further that objective inasmuch as the surplus fund becomes susceptible to diminution upon a successful appeal by the employer.
Finally, I am not inclined to believe that Ratliff v. Flowers (1970), 25 Ohio App. 2d 113 [54 O.O.2d 213], is “easily distinguished” simply because the claimant in Ratliff, supra, failed to prevail at the administrative level. The majority seems to be advancing the position that, when a claimant loses administratively and dies while his appeal to the court of common pleas is pending, his appeal is extinguished. Thus, the majority rejects a uniform rule and instead structures a rule of abatement dependent upon the outcome of the administrative proceeding. R.C. 4123.519 does not lend itself to such an interpretation; the appeal should either abate or continue without regard to the prevailing party at the administrative level. Accordingly, I would endorse the view expressed in Ratliff v. Flowers, supra, and hold that, regardless of whether the claimant prevailed at the administrative level, where the claimant dies while the appeal under R.C. 4123.519 is pending in the court of common pleas, such appeal is extinguished and should be dismissed.
C. Brown and J. P. Celebrezze, JJ., concur in the foregoing dissenting opinion.