465 N.E.2d 1317 | Ohio Ct. App. | 1983
Plaintiff-appellee, Linda Boston ("Boston"), filed a workers' compensation claim on behalf of herself and her daughter, Tonia Newland ("Tonia"), for benefits arising from the death of Franklin Newland, who was killed while working for defendant-appellant, Indiana Farm Bureau Cooperative Association ("Farm Bureau").1 The Industrial Commission issued an order on October 27, 1981 ("the order"), which read in full: "It *5 is the finding of the Chief Hearing Officer that the overpayment of the widow-claimant, Linda Boston, in the amount of $3,894.00 will be deducted from death benefits payable to Tonia Newland, daughter claimant."
Farm Bureau appealed this order to the court of common pleas under R.C.
Farm Bureau argues that the order was not a decision concerning "the extent of disability" and was therefore appealable. We agree. R.C.
We believe the order appealed from by Farm Bureau involves neither the "right to participate" nor the "extent of disability." The order does not concern the "right to participate," because in adjusting the payment of an award on the death of Franklin Newland as between Tonia and Boston, the order is subsequent to, and assumes the existence of, a determination that compensation is payable from the Workers' Compensation Fund in an amount already calculated. The order assumes Boston is not entitled to any part of the award, and Tonia is. The order, further, does not concern the "extent of disability," because it does not "constitute a determination of the basis for the computation of the compensation or benefits" payable under the law, that is, how much Tonia will receive. Cf. Miraglia v. B.F.Goodrich (1980),
We believe some decisions of the Industrial Commission involve neither "the right to participate" nor "the extent of disability," because the statute clearly encompasses other types of decisions by providing that any order will be appealableunless it goes to the extent of disability. We hold the order does not go to extent of disability and so is appealable.
However, we find that the grant of judgment for Boston was correct on other grounds than those asserted by the court. An appellate court may affirm a correct judgment even though not upholding the reasoning used by the lower court. McCormick v.Haley (1973),
Defendant also argues that Boston was not entitled to an award of attorney's fees. We disagree. R.C.
Judgment affirmed.
DOAN and KLUSMEIER, JJ., concur.
"The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section
"* * *
"The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the industrial commission if the industrial commission or the administrator rather than the employer contested the right of the claimant to participate in the fund. Such attorney's fee shall not exceed twenty per cent of an award up to three thousand dollars and ten per cent of all amounts in excess thereof, but in no event shall such fee exceed fifteen hundred dollars."
It may be argued that when the worker was killed by an accident in the course of employment, there can be no question about the extent of his disability; it is total. However, appeals from the awards made in death cases have been dismissed as prohibited by R.C.