Thе sole issue before this court .is whether the pending appeal filed by appellant in the Court of Common Plеas constitutes a plain and adеquate remedy and, thus, precludes the Court of Appeals from entertаining appellant’s complaint in mandamus. State, ex rel. Niles, v. Bernard (1978),
In paragraph one of the syllabus in Zavatsky v. String
“An order of the Industrial Commission which eÁthcr denies or allows a сlaimant the right to participatе in the Workers’ Compensation Fund for injury to a specific part or parts of the body involving loss or impairment оf bodily functions on the basis that such was оr was not the result of a compensable injury, is a decision other than one as to the extent of disability and, thus, рursuant to E. C. 4123.-519, may he appealed to the Court of Common Pleas by the claimant in the event оf such a denial, or by the employer in the event of such an allowance.” (Emphasis added.)
The commission’s finding in thе instant oa.use was not a denial оf appellant’s right to participate in the Workers’ Compensation Fund. The issue before the commission was limited to Avhether, considering those disаbilities which had been allowed, appellant Avas permanently and totally disabled. This is evident upon the faсe of appellant’s motion for permanent and total disability, A\rhich rеads as follows:
“Now comes the Clаimant [appellant], Elizabeth S. Dodson, and moves the Industrial Commission for an оrder declaring her to be permаnently and totally disabled as a direct result of her injury dated June 12, 1964.” (Emphasis added.)
In Smith v. Krouse (1978),
Filing an appeal from a cоmmission order Avhich is not appeаlable is a futile act, and can nоt constitute a plain and adequate remedy in the ordinary course оf the law. '
Accordingly, the judgment of the Cоurt of Appeals sustaining the motion to dismiss is reversed and the cause is remanded to that court for further proceedings.
Judgment reversed and cause remanded.