State Ex Rel. B & C MacHine Co. v. Industrial Commission

OPINIONS OF THE SUPREME COURT OF OHIO

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The State ex rel. B & C Machine Company, Appellant, v.

Industrial Commission of Ohio et al., Appellees.

[Cite as State ex rel. B & C Machine Co. v. Indus. Comm.

(1992), Ohio St.3d .]

Workers' compensation -- Industrial Commission has authority

pursuant to R.C. 4123.52 to modify a prior order that is

clearly a mistake of law.

The Industrial Commission has the authority pursuant to

R.C. 4123.52 to modify a prior order that is clearly a

mistake of law.

(No. 92-150 -- Submitted October 20, 1992 -- Decided

December 30, 1992.)

Appeal from the Court of Appeals for Franklin County, No.

90AP-624.

In 1969, Elmer Holik was injured while in the course of

and arising from his employment with appellant, B & C Machine

Company. Following the allowance of his workers' compensation

claim, Elmer applied for and was granted an additional forty

percent award due to appellant's violation of a specific safety

requirement.

In 1977, appellee Industrial Commission of Ohio

("commission") awarded Elmer "medical treatment for control of

diabetes due to industrial injury of amputation left hand."

Elmer died in 1978 of diabetes-related renal disease. On

October 21, 1980, Elmer's widow, appellee Sylvia R. Holik,

filed an application for death benefits. A district hearing

officer granted the death claim in February 1981, finding that

Elmer's death was a result of an injury sustained in his

employment with appellant. The order, and thus the award, were

administratively affirmed. However, the death benefits did not

include the additional forty percent awarded to Elmer during

his lifetime for violation, by appellant, of the specific

safety requirement.

On October 7, 1986, Sylvia's counsel wrote to the

commission, claiming that the additional forty percent award

entitled Sylvia to an additional $86.40 per week in death

benefits. Sylvia's counsel further claimed that Sylvia was due

eight years of additional compensation amounting to

$35,942.40. The commission construed the letter as a motion

for further benefits and scheduled the matter for hearing.

A hearing was conducted on May 2, 1989, and, as a result,

the commission denied Sylvia's request for increased benefits.

The commission concluded that the additional forty percent

award paid to Elmer during his lifetime abated at his death.

The commission further concluded that Sylvia was not entitled

to the additional award because she did not file for such

compensation within two years of Elmer's death. The commission

stated that its decision was based upon Indus. Comm. v. Davis

(1933), 126 Ohio St. 593, 186 N.E. 505, and State ex rel. Carr

v. Indus. Comm. (1935), 130 Ohio St. 185, 4 O.O. 122, 198 N.E.

480.

On July 20, 1989, Sylvia requested that the commission

rehear its prior order denying the additional benefits. The

following day, Sylvia also appealed the commission's order,

pursuant to R.C. 4123.519, to the Court of Common Pleas of

Summit County. Subsequently, the commission vacated its prior

order and, on January 17, 1990, granted the increased award,

stating that:

"It is the finding and order of the Commission that is

[sic] retains jurisdiction over this claim in order to

determine whether or not the order finding a violation of

specific safety requirement dated July 28, 1973 was abated by

reason of the claimant's death * * *. It is the finding of the

Industrial Commission that the widow-claimant does have a

vested right to continue to receive the additional award

ordered by the Industrial Commission on July 28, 1973 and her

right to receive such benefits survives the death of the

decedent. * * * [O]nce a violation of specific safety

requirement has been found by the Industrial Commission in the

deceased-claimant's claim, it is unnecessary that the

widow-claimant re-apply to the Industrial Commission for

re-determining the existence or finding of a violation of

specific safety requirement. Payment of the additional award

to the widow-claimant * * * is to be made from October 26, 1978

to the present. The violation of the specific safety

requirement award was July 28, 1973. 40% award shall attach to

death benefits payable to the widow-claimant. This

determination is made pursuant to Commission rule 4121-3-20(A)

and Article 2, Section 35 of the Ohio Constitution. * * *"

Appellant filed a complaint in mandamus in the Court of

Appeals for Franklin County, challenging the commission's

January 17, 1990 findings and order. The court of appeals

found no abuse of discretion and denied the writ.

This matter is now before this court upon an appeal as of

right.

Buckingham, Doolittle & Burroughs, Brett L. Miller and

Eleanor J. Tschugunov, for appellant.

Lee I. Fisher, Attorney General, and Cordelia A. Glenn,

Assistant Attorney General, for appellee Industrial Commission.

Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J.

Jaffy; Pavick & Pavick and Michael J. Pavick, for appellee

Holik.

Douglas, J. The underlying issue in this appeal is

whether the commission had the authority to vacate and

reconsider its 1989 order denying additional benefits to Sylvia

Holik. For the reasons that follow, we find that the

commission had such authority. We further hold that the

commission's January 17, 1990 decision is in accordance with

law.

As a threshold matter, we note that appellant essentially

concedes that the Summit County Court of Common Pleas did not

have subject-matter jurisdiction to address the merits of

Sylvia's R.C. 4123.519 appeal but, nevertheless, contends,

citing various cases, that the filing of the notice of appeal

in the common pleas court by Sylvia divested the commission of

jurisdiction to reconsider its 1989 order, rendering the

commission's January 17, 1990 decision null and void. The

court of appeals, in addressing appellant's contention,

concluded that: "* * * [T]he filing of an appeal terminates

the Industrial Commission's authority to reconsider its

decision only when the decision is appealable to a court. In

other words, the agency's authority to reconsider its decision

is not terminated by an attempted appeal from a decision which

as a matter of law is not appealable." We agree with the

conclusion reached by the court of appeals.

Without question, specific-safety-requirement-violation

determinations by the commission are not directly appealable to

the court of common pleas. See Afrates v. Lorain (1992), 63

Ohio St.3d 22, 584 N.E.2d 1175. Section 35, Article II of the

Ohio Constitution vests exclusive and final jurisdiction in the

commission, with respect to specific-safety-requirement

violations, subject to correction in mandamus upon a showing of

an abuse of discretion. State ex rel. Cincinnati Drum Service,

Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135, 556 N.E.2d

459. Further, this court has determined that the filing of a

R.C. 4123.519 appeal from a commission order which is not

appealable is a "futile act." However, such a filing does not

bar a suit in mandamus. See State ex rel. Dodson v. Indus.

Comm. (1979), 58 Ohio St.2d 399, 401, 12 O.O.3d 345, 346, 390

N.E.2d 1189, 1190. Thus, in view of the foregoing, we believe

that the notice of appeal filed by Sylvia should be treated as

a nullity and, as such, the notice does not divest the

commission of jurisdiction to reconsider its 1989 order.

Moreover, it is clear that appellant's reliance on those cases

which hold that the commission retains jurisdiction to

reconsider a decision only until the time an appeal is filed,

or the time for appeal has run, is misplaced.

Appellant also objects to the January 17, 1990 award of

additional benefits to Sylvia on the basis that the commission

did not have jurisdiction to award such benefits since Sylvia's

1986 request was not filed within two years of Elmer's death.

However, we believe under the facts of this case the commission

had the authority under R.C. 4123.52 to consider Sylvia's 1986

request and correct its clear mistake of law in originally

denying the additional benefits.

Continuing jurisdiction is vested in the commission by

R.C. 4123.52, which provides, in part, that:

"The jurisdiction of the industrial commission over each

case shall be continuing, and the commission may make such

modification or change with respect to former findings or

orders with respect thereto, as, in its opinion is justified."

(Emphasis added.)

R.C. 4123.52 contains a broad grant of authority.

However, we are aware that the commission's continuing

jurisdiction is not unlimited. See, e.g., State ex rel. Gatlin

v. Yellow Freight System, Inc. (1985), 18 Ohio St.3d 246, 18

OBR 302, 480 N.E.3d 487 (commission has inherent power to

reconsider its order for a reasonable period of time absent

statutory or administrative restrictions); State ex rel.

Cuyahoga Hts. Bd. of Edn. v. Johnston (1979), 58 Ohio St.2d

132, 12 O.O.3d 128, 388 N.E.2d 1383 (just cause for

modification of a prior order includes new and changed

conditions); State ex rel. Weimer v. Indus. Comm. (1980), 62

Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149 (continuing

jurisdiction exists when prior order is clearly a mistake of

fact); State ex rel. Kilgore v. Indus. Comm. (1930), 123 Ohio

St. 164, 174 N.E. 345 (commission has continuing jurisdiction

in cases involving fraud); State ex rel. Manns v. Indus. Comm.

(1988), 39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an

inferior tribunal is a sufficient reason to invoke continuing

jurisdiction); and State ex rel. Saunders v. Metal Container

Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170

(mistake must be "sufficient to invoke the continuing

jurisdiction provisions of R.C. 4123.52"). Today, we expand

the list set forth above and hold that the Industrial

Commission has the authority pursuant to R.C. 4123.52 to modify

a prior order that is clearly a mistake of law. In so holding,

we note that the court of appeals ably recognized that: "* * *

[W]here it is clear that this court would issue a writ of

mandamus ordering the Industrial Commission to vacate, modify

or change a decision or order, the respondent Industrial

Commission neither exceeds its authority or jurisdiction nor

acts unlawfully nor abuses its discretion if it proceeds to

make such correction that this court would clearly have ordered

without awaiting either an action being filed in this court or

a decision from this court if one be filed."

It is clear that the commission's 1989 order, denying

Sylvia additional benefits, was a mistake of law. The

commission's order was premised on the fact that Sylvia did not

file a claim for additional benefits within two years of

Elmer's death.

Ohio Adm.Code 4121-3-20 and 4123-3-20, and their

predecessors, required that an application for an award for

violation of a specific safety requirement be filed within two

years of the injury or death resulting from the violation.

Neither provision requires that an application be made within

two years of the claimant's injury and, again, within two years

of the claimant's death. Rather, when read in their entirety,

these rules focus only on the initial

specific-safety-requirement-violation determination. Here, an

application for an award for violation of a specific safety

requirement was filed by Elmer within two years of his injury.

The commission has determined that a violation occurred, that

appellant's violation caused injury, and that injury caused

death. It is apparent that the specific-safety-requirement

violation caused Elmer's death. Hence, to require the widow,

Sylvia, to reestablish that the specific-safety-requirement

violation caused the death of her husband would serve no useful

purpose. Stated otherwise, the widow had nothing more to

prove. The two-year administrative filing requirement was

satisfied when Elmer filed his application. Given this factor,

Sylvia was not required to file for additional benefits within

two years of Elmer's death. Such additional benefits should

have automatically attached to the death benefits paid Sylvia.

Accordingly, we find that the commission's January 17,

1990 order was correct in all respects. The judgment of the

court of appeals denying appellant's writ is affirmed.

Judgment affirmed.

Sweeney, H. Brown and Resnick, JJ., concur.

Moyer, C.J., Holmes and Wright, JJ., dissent.

Moyer, C.J., dissenting. In reaching the result that it

does, the majority ignores the rule of law established as

precedent in this court. Accordingly, I respectfully dissent.

An action in mandamus will lie when a public agency is

under a clear legal duty to perform an official act and there

is no plain and adequate remedy in the ordinary course of law.

State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d

141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph one of the

syllabus. Thus, mandamus is appropriate when the Industrial

Commission makes a decision on a request for an award of

benefits for violation of a specific safety requirement

("VSSR") which the law clearly prohibits. See State ex rel.

Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 4 0.0. 122, 198

N.E. 480. Because in my view the law clearly prohibits the

commission from reconsidering its initial order denying

benefits under the circumstances of this case, I would grant

the writ.

R.C. 4123.52 provides that the Industrial Commission has

continuing jurisdiction over each case and that it may modify

former orders "as, in its opinion is justified." Just cause

for such a modification includes new and changed conditions,

State ex rel. Cuyahoga Hts. Bd. of Edn. v. Johnston (1979), 58

Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d 1383; mistake of

fact, State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio

St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149; fraud, State ex rel.

Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 174 N.E. 345;

and mistake by an inferior tribunal, State ex rel. Saunders v.

Metal Container Corp. (1990), 52 Ohio St.3d 85, 556 N.E.2d 168.

Today, the majority adds to the list mistake of law in a

prior order. Because I would hold that the commission's lack

of power to modify its prior order is jurisdictional in nature,

I would not reach this substantive question.

The dispositive principle in this case is that the power

of the commission to modify a prior order is limited. The

commission has jurisdiction to reconsider its decision until

the expiration of time in which to initiate a court appeal, or

until the actual institution of an appeal. State ex rel.

Prayner v. Indus. Comm. (1965), 2 Ohio St.2d 120, 31 O.O.2d

192, 206 N.E.2d 911.

This rule applies even where the court to which appeal is

taken has no jurisdiction to hear the appeal. State ex rel.

Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464,

277 N.E.2d 419 (civil service commission has jurisdiction to

reconsider decision until expiration of time for appeal or

until actual appeal taken); Diltz v. Crouch (1962), 173 Ohio

St. 367, 19 O.O.2d 312, 182 N.E.2d 315 (Board of Liquor Control

has continuing jurisdiction until expiration of time for

appeal, or actual appeal).

In Diltz, the plaintiffs were holders of liquor permits

which the Board of Liquor Control revoked. Plaintiffs appealed

the revocations to the trial court, which affirmed the board's

decision. Thereafter, plaintiffs applied to the board for

reconsideration, and the board modified the revocations to

suspensions. This court held that even though the trial court

lacked jurisdiction to hear the plaintiffs' appeal, the

initiation of that appeal nevertheless terminated the board's

jurisdiction to modify its prior order.

In Borsuk, relator was a police officer terminated after

his one-year probationary period. Relator requested a hearing

before the city civil service commission, pursuant to which the

commission reinstated him. The city requested a rehearing, and

afterwards appealed the commission's decision to the court of

common pleas. The trial court dismissed the appeal for lack of

subject-matter jurisdiction. The commission then refused to

rehear the matter, stating that it lacked jurisdiction in view

of the prior court appeal. The officer brought a mandamus

action to compel the city to reinstate him pursuant to the

pre-appeal order. The city opposed the mandamus action,

arguing that the commission still had jurisdiction to rehear

the matter and modify its order. This court affirmed the court

of appeals in granting the writ, holding that the commission

lost its jurisdiction to modify its order once the city

appealed. Citing Diltz as controlling, this court expressly

rejected the argument that because the trial court lacked

jurisdiction to hear the city's appeal, the appeal never

divested the commission of its power to rehear the matter.

It is not in dispute that VSSR determinations by the

commission are not directly appealable to the court of common

pleas. State ex rel. Cincinnati Drum Serv. v. Indus. Comm.

(1990), 52 Ohio St.3d 135, 556 N.E.2d 459. The majority

states, however, that because the commission's order was not

appealable but instead subject only to an action in mandamus,

Sylvia Holik's appeal did not divest the commission of

jurisdiction to reconsider its order. Diltz and Borsuk, supra,

however, hold otherwise. The majority opinion fails to cite

any authority that contradicts the clear holdings of these

cases. Nor does it give any principled reason for

distinguishing them, other than the bald assertion that

reliance on these cases "is misplaced." The majority thus

exempts the Industrial Commission from law that governs other

administrative agencies.

In fact, the reasoning in Diltz and Borsuk is equally

applicable here. Once the Industrial Commission denied VSSR

benefits to appellee Holik, it retained jurisdiction to modify

its order, for good cause shown, until the expiration of the

time for appeal or the actual institution of appeal. When

Holik instituted her court appeal on July 21, 1989, however,

the commission lost the power to modify its prior order. The

fact that the court of common pleas lacked jurisdiction to hear

Holik's appeal from an adverse decision of the commission on

her entitlement to VSSR benefits does not change this result.

The trial court did have jurisdiction to make the threshold

determination of whether to allow the action to proceed. See

State ex rel. Dickison v. Court of Common Pleas (1971), 28 Ohio

St.2d 179, 57 O.O.2d 411, 277 N.E.2d 210.

The majority chooses to ignore this clear and

well-established law, asserting instead that because the filing

of an R.C. 4123.519 appeal is a "futile act," it could not

divest the commission of the power to reconsider. Although

such an appeal may be futile, it is not without consequences.

While it is unfortunate that appellee made the decision to file

a futile appeal to the court of common pleas, apparently

without the awareness of these consequences, it is not the

function of this court to mitigate the errors of litigants or

their counsel by ignoring applicable law. The appeals taken

from administrative bodies in Diltz and Borsuk were equally

futile acts, yet they ended the jurisdiction of the agency to

reconsider. The same result should occur here.

I would hold that the Industrial Commission loses

jurisdiction to reconsider its own order once the party

requesting reconsideration of the order has appealed it to the

court of common pleas.

To achieve the result it does, the majority overlooks the

principle that true fairness in the law requires its consistent

application and respect for binding precedent. Because this

court's precedent contradicts the majority's decision in this

case, I respectfully dissent.

Holmes and Wright, JJ., concur in the foregoing dissenting

opinion.