Thomas v. Conrad ( 1997 )

Montgomery App. Nos. 15873 and 15898. On review of order certifying a conflict. The court determines that a conflict exists; the parties are to brief the question certified by the court of appeals at page 2 of its Decision and Entry filed March 13,1997:

“ * * * [0]ur decision in this appeal conflicts with the Tenth District Court of Appeals’ decision in Moore v. Trimble (Dec. 21, 1993), Franklin App. No. 93APE08-1084, unreported [1993 WL 531289], and the Fifth District Court of Appeals’ decision in Jones v. Massillon Bd. of Edn. (June 13, 1994), Stark App. No. 94 CA0018, unreported [1994 WL 313721],

“The issue presented is whether an employer may appeal in the common pleas court from an administrative denial of its request to terminate an employee’s continued participation in the workers’ compensation system. In Moore and Jones, the appellate courts held that an employer may appeal in the common pleas court from any Industrial Commission ruling ‘involving’ a claimant’s right to continue participating in the workers’ compensation system. Consequently, both courts found an appeal to the common pleas court proper when the Industrial Commission refused to terminate an employee’s continued participation.

“Conversely, this court and the Eleventh District Court of Appeals in Bishop v. Thomas Steel Strip Corp. (1995), 101 Ohio App.3d 522 [655 N.E.2d 1370], have held that the Industrial Commission’s refusal to terminate an employee’s continued participation in the workers’ compensation system must be appealed through mandamus rather than through an appeal to the common pleas court. We determined that once a claimant is granted the right to participate in the workers’ compensation system, no subsequent Industrial Commission ruling, except a ruling terminating that right, may be appealed to the common pleas court.

“Having found that a conflict exists, we certify the following question to the Ohio Supreme Court for review and final determination:

“May an employer appeal in common pleas court from an Industrial Commission order refusing to terminate an employee’s continued participation in the workers’ compensation system?”