concurring in part and dissenting in part. I concur in part and respectfully dissent in part as to the majority opinion. I do so for the following reasons.
Herein, the court of appeals issued a writ of mandamus ordering the Industrial Commission to vacate its May 1989 order and to conduct further proceedings on the question of whether claimant’s resignation was voluntary. The court of appeals also ordered the commission to issue a new determination either granting or denying claimant’s request for temporary total disability compensation. The majority opinion appears to agree with the judgment of the court of appeals on these issues and I concur in that approval and would affirm the judgment of the court of appeals thereon.
I do not agree, however, with the judgment of the court of appeals and the discussion in today’s majority opinion that a decision, arising under R.C. 4123.52, concerning jurisdiction of the commission is an order which is appealable pursuant to R.C. 4123.519. I agree with the relator that the court of appeals should have considered the issue and that the proper way to challenge a decision of the commission that it does (or does not) have continuing jurisdiction over a claim is through a mandamus action — not an R.C. 4123.519 appeal.
In the case at bar, the commission awarded benefits (temporary total) to respondent Smith. In effect then, the commission did determine that it had jurisdiction because otherwise it would not have entered such an order. Be that as it may, the issue that is more troubling in today’s majority opinion is whether a decision of the commission rendered pursuant to R.C. 4123.52 is appealable under R.C. 4123.519. Even more troubling is that, on this issue, the majority opinion seems to be internally contradictory.
*285The majority says “[a] decision by the commission upon the question of its continuing jurisdiction, being appealable, may not be presented to an appellate court by way of an original action such as mandamus.” In the next paragraph of the majority opinion, the majority then says (after discussing the fact that the commission’s order did order compensation paid) “ * * * [t]his is the only ‘decision’ rendered by the commission and is clearly one on the ‘extent of disability’ that, pursuant to R.C. 4123.519, is not appealable.” (Emphasis added.) These statements appear to be irreconcilable.
In any event, the majority does hold (and the court of appeals discussed) that an R.C. 4123.52 decision of the commission is appealable under R.C. 4123.519. Given previous cases of this court, Valentino v. Keller (1967), 9 Ohio St.2d 173, 38 O.O.2d 412, 224 N.E.2d 748, and State, ex rel. Consolidation Coal Co., v. Indus. Comm. (1985), 18 Ohio St.3d 281, 18 OBR 333, 480 N.E.2d 807, it is easy to understand the comments of the court of appeals and the referee on this question. Further, I recognize that I was part of the majority in Consolidation Coal, but I now find, after having had more experience and now better understanding R.C. Chapter 4123, that I was wrong in joining the per curiam opinion that makes an order involving an R.C. 4123.52 question appealable under R.C. 4123.519.
I recognize that a decision of the commission that it does, or does not, have continuing jurisdiction of a claim (a decision made in accordance with R.C. 4123.52) looks like, smells like and maybe even limps like a decision on a claimant’s “right to participate” in the fund. But is it such a decision? I think not.
When the commission makes such a determination, all the commission is deciding is whether a statute of limitations has run on a claimant’s claim and whether it (the commission) has any jurisdiction to proceed to the next step— the claimant’s right to continue to participate in the fund. At that point, the commission has not decided what further benefits, if any, the claimant is entitled to be awarded. If such a decision is appealable in an R.C. 4123.519 appeal, what then is the issue in the court of common pleas and who has the burden of going forward? Obviously, the first (and I submit the only) question that would be before the court would be whether the commission was correct in saying it did, or did not, have continuing jurisdiction.
Whether the commission does or does not have continuing jurisdiction is not a “right to participate question.” The commission has only decided the question of whether it has the right to proceed to determine the other questions that arise in claimant’s new or extended claim, such as: did the condition(s) for which claimant seeks additional benefits arise out of claimant’s industrial injury; did these conditions arise out of claimant’s employment with *286his or her employer; was there a period of temporary total disability; is the claim for permanent partial disability compensation proper and, if so, for what degree of disability and in what monetary amount, and so forth. Obviously, none of the information on those issues would be before the court if an appeal is immediately taken after the commission determines under R.C. 4123.52 that it does or does not have jurisdiction. By necessity, the court would have to remand the case to the commission for further determination on those questions — a waste of both administrative and judicial resources.
In addition, if an R.C. 4123.52 decision is appealable under R.C. 4123.519, who has the burden of going forward? R.C. 4123.519(C) requires the claimant to “ * * * file a petition containing a statement of facts * * * showing a cause of action to participate or to continue to participate in the fund * * *.” (Emphasis added.) What facts can a claimant set forth involving the right to participate when the issue to be decided by the court is if the commission had jurisdiction or if the limitations period had expired? The question would seem to answer itself. The R.C. 4123.52 determination just is not the proper subject for an R.C. 4123.519 appeal.
Further, R.C. 4123.519(C) provides, in pertinent part, for the right of a claimant to a trial by jury. Can it be seriously contended that the question of commission jurisdiction, per R.C. 4123.52, is one of fact rather than law? Again, to ask the question is to answer the question.
I believe we have decided this issue in our recent announcement of Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175. Although that case involved an R.C. 4123.522 issue, the legal theory is the same. It is unfortunate that today the majority, so soon after Afrates, permits yet another encroachment on the R.C. 4123.519 appeal procedure.
As a final thought, I cite to our recent decision in State, ex rel. Columbus Southern Power Co., v. Sheward (1992), 63 Ohio St.3d 78, 585 N.E.2d 380. Therein the issue was whether the common pleas court had jurisdiction to hear a challenge as to the constitutionality of a statute (R.C. 4909.42) when the underlying case involved the rates proposed to be charged by a public utility. Ratemaking authority is exclusively within the province of the Public Utilities Commission of Ohio subject only to appeal and review by this court. The case looked like a rate case and, thus, the argument was made, that a common pleas court had no jurisdiction in the matter.
But it was not a rate case, held a majority of this court. We found that while the question, at least peripherally, was one involving rates, the real question before the common pleas court was the constitutionality of a statute — a proper matter to be considered by a court of common pleas. While *287eventually the matter will become a rate case, the case in the common pleas court at that time was not one directly involving ratemaking.
We have the same situation in the case at bar. The issue of whether the commission has jurisdiction to proceed must first be decided before claimant’s right to continue to participate can be determined, even administratively. Because the majority opinion indicates otherwise, by holding that a decision of the commission pursuant to R.C. 4123.52 may be appealed under R.C. 4123.-519, I must respectfully dissent from that portion of the opinion.
Sweeney, J., concurs in the foregoing opinion.