finding that establishing new and changed circumstances entails demonstrating that “conditions have changed subsequent to the initial award,” and not simply evidence which was “newly acquired”
How later courts described this case
- finding that establishing new and changed circumstances entails demonstrating that “conditions have changed subsequent to the initial award,” and not simply evidence which was “newly acquired”
- reviewing an order under R.C. 4123.52 that rescinded disability compensation due to alleged fraud
- the evidence must be not merely newly acquired information, but rather proof that “conditions have changed subsequent to the initial award”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. I must dissent in that I believe that the Industrial Commission, in view of these particular facts, maintained continuing jurisdiction of this claim, and reasonably and lawfully ordered a denial of further temporary total disability compensation, and declaration of overpayment of the prior award.
The claimant filed his application for, and was awarded, workers’ compensation benefits for injury to his lower back. While the claimant was still receiving such compensation, the employer, through the news media, became aware that the claimant was actively, and quite successfully, involved in the competitive bowling circuit, despite his alleged low back disability. At this point, the employer filed its request in the claim contesting the payment of temporary total benefits.
In the case at bar, relator sought and was awarded temporary total disability benefits, i.e., his representations were accepted that he was unable to return to his former position of employment due solely to his allowed condition of “low back strain.” During most of the period when such benefits were being paid, relator engaged regularly and highly successfully in a sporting activity which required repeated bending, lifting, twisting and throwing motions involving a ball weighing as much as sixteen pounds.
The court of appeals agreed with respondent Industrial Commission that such evidence, when compared to relator’s light-to-moderate work duties in his job description, clearly supported a finding that relator had been and continued to be engaged in activities inconsistent with a finding of temporary total disability.
The court of appeals then determined that the commission, while empowered to cut off further benefits, could not exercise its continuing jurisdiction over previous orders to reach back the maximum of two years and conform the benefits previously awarded to the newly discovered evidence of relator’s sports activities.
The commission clearly has authority under R.C. 4123.52 to modify previous orders where new and changed circumstances, such as the discovery of relator’s bowling escapades, are uncovered. State, ex rel. Cleveland, Columbus, Cincinnati Highway Co., v. Indus. Comm. (1980), 70 Ohio App.2d 41 , 24 O.O.3d 37 , 434 N.E.2d 279 ; State v. Ohio Stove Co. (1950), 154 Ohio St. 27 , 42 O.O. 117 , 93 N.E.2d 291 . The Tenth District Court of Appeals, which rendered the decision below, has not hesitated in the past to uphold the commission’s declaration of an overpayment where a claimant was discovered *144 to have engaged in odd job activities incompatible with the receipt of temporary total disability benefits. State, ex rel. Sowders, v. Indus. Comm. (Dec. 3, 1987), Franklin App. No. 86AP-614, unreported.
This court recently emphasized the breadth and scope of the commission’s continuing jurisdiction in State, ex rel. Manns, v. Indus. Comm. (1988), 39 Ohio St.3d 188 , 529 N.E.2d 1379 , where it held that a previous error by the commission’s own employees was sufficient reason for the commission to invoke its continuing jurisdiction and correct the mistake. If innocent error inconsistent with entitlement to benefits is sufficient to trigger the exercise of continuing jurisdiction, how much more so is the discovery of undisclosed behavior by a claimant incompatible with entitlement to such benefits?
It would be unreasonable to reward relator’s behavior by limiting the commission to termination of future benefits. The court of appeals, ruling here in conflict with its own previous decision in Sowders, supra, creates a windfall to relator for a period during which he successfully avoided discovery of his diligent practice and notable triumphs on the bowling lanes. There is nothing in the language of R.C. 4123.52 which protects relator from correction of awards made under such circumstances.
R.C. 4123.52 provides, in pertinent part:
“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. * * *”
Other than general time limitations, the remainder of the statute places no limits on the commission’s discretion in modifying its “former findings or orders.” While I recognize that the commission cannot simply reach back and change its mind on a previous finding or order without some reason, I believe that it is reasonable to conclude that the commission has broad discretion, expressly conferred by the statute, to make such modification where it specifically refers to some justification.
The Industrial Commission, and the employer, acted on previously unknown, dramatic evidence, revealed in the news media, and did so promptly. The modification of the previous order was as fully justified as was the refusal to award further benefits. The effect of this modification was to conform the award of benefits to the truth of relator’s physical abilities, and was in no way a violation of the letter or intent of the controlling statute, R.C. 4123.52.
I would therefore reverse the judgment of the court of appeals consistent with this dissent, and deny the writ of mandamus requested by the relator.
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.