556 N.E.2d 467 (Ohio 1990), 88-2038, State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio

Docket Nº88-2038.
Citation556 N.E.2d 467, 52 Ohio St.3d 144
Opinion JudgeWRIGHT, J.
Party NameThe STATE, ex rel. SEARS, ROEBUCK & COMPANY, Appellee, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants.
AttorneySeeley, Savidge & Aussem and Thomas M. Carolin, Cleveland, for appellee. Seeley, Savidge & Aussem and Thomas M. Carolin, for appellee., Anthony J. Celebrezze, Jr., attorney general, Donald R. Ford, Jr., and Cheryl J. Nester, for appellant Industrial Commission., Victor H. Hahn, for appellant John...
Judge PanelMOYER, C.J., and HERBERT R. BROWN and RESNICK, JJ., concur. SWEENEY and DOUGLAS, JJ., concur in part and dissent in part. HOLMES, J., dissents. DOUGLAS, Justice, concurring in part and dissenting in part. SWEENEY, J., concurs in the foregoing opinion. HOLMES, Justice, dissenting.
Case DateJuly 03, 1990
CourtSupreme Court of Ohio

Page 467

556 N.E.2d 467 (Ohio 1990)

52 Ohio St.3d 144

The STATE, ex rel. SEARS, ROEBUCK & COMPANY, Appellee,

v.

INDUSTRIAL COMMISSION OF OHIO et al., Appellants.

No. 88-2038.

Supreme Court of Ohio.

July 3, 1990

Page 468

Submitted March 14, 1990.

Syllabus by the Court

1. In its prospective application to claims arising from injuries sustained after October 1, 1963, the provision in former R.C. 4123.57(B) (now in [A] ) mandating a one hundred percent ceiling on awards for permanent partial compensation under workers' compensation is constitutional.

2. Retrospective application of the provision in R.C. 4123.57(B) (now in [A] ) mandating a one hundred percent ceiling on awards for permanent partial compensation so as to aggregate awards for injuries sustained before October 1, 1963 with awards for injuries sustained after October 1, 1963 is unconstitutional.

John Bednar, appellee, was awarded permanent partial compensation 1 by the Industrial Commission of Ohio for five different bodily injuries that occurred in the course of and arose out of his employment with three different employers. Bednar was awarded, and elected to receive under [52 Ohio St.3d 145] R.C. 4123.57(B), workers' compensation for injuries occurring in the years 1961, 1966, 1981, 1982, and 1983. For these injuries, the commission eventually awarded him percentages of permanent partial disability totalling seventy-seven percent for the 1961 claim (claim No. 2272150), forty-eight percent for the 1966 claim (claim No. 2496529), ten percent for the 1981 claim (claim No. 745929-22), twelve percent for the 1982 claim (claim No. 845368-22), and thirty percent for the 1983 claim (claim No. 818804-22).

Bednar was an employee of Sears, Roebuck & Company ("Sears"), appellee, when he sustained the 1982 and 1983 injuries. For the 1982 injury, the commission's hearing officer allowed Bednar's claim for "right shoulder bursitis, ruptured biceps" and awarded Bednar twelve percent permanent partial compensation on January 27, 1986. For the 1983 injury, the hearing officer allowed Bednar's claim for "Lumbar

Page 469

myositis, spondylosthesis L4, L5" and awarded Bednar thirty percent permanent partial compensation on April 4, 1985. Sears timely filed its applications for reconsideration for both of these claims, which a staff hearing officer denied after a hearing on August 13, 1986.

Sears then sought a writ of mandamus from the Court of Appeals for Franklin County to compel the commission to vacate its order granting Bednar a twelve percent permanent partial compensation award for his 1982 injury and a thirty percent permanent partial compensation award for his 1983 injury. Sears requested the writ because it believed granting these two awards was contrary to an amendment to R.C. 4123.57(B), effective October 1, 1963, which prohibits granting a permanent partial compensation award when the claimant's previous permanent partial compensation awards already total one hundred percent or greater. 2 Am.Sub.S.B. No. 131, 130 Ohio Laws 927, 1466-1467. (A later amendment to R.C. 4123.57, effective August 22, 1986, moved this language from section [B] to section [A] of R.C. 4123.57. See Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 718, 768.) In awarding the twelve percent permanent partial compensation for the 1982 claim and the thirty percent for the 1983 claim, the commission followed its October 14, 1983 written policy of excluding permanent partial compensation percentages awarded for injuries occurring prior to October 1, 1963, when calculating the point at which a permanent partial compensation percentage award would exceed the one hundred percent permanent partial compensation award ceiling of R.C. 4123.57(B).

After receiving briefs and holding a hearing, a referee for the court of appeals rendered his report on June 9, 1988 and recommended that the court " * * * issue a writ of mandamus ordering respondent Industrial Commission to vacate the orders in claim numbers 845368-22 and 818804-22 awarding respectively, percentages of permanent partial disability of twelve percent and thirty percent because each award, when taken with all other percentages of permanent partial disability awarded claimant, exceeds one hundred percent in violation of R.C. 4123.57(B)." The referee based his recommendation in part on the holding in State ex rel. Frank v. Keller (1965), 3 Ohio App.2d 428, 32 O.O.2d 549, 210 N.E.2d 724, that the amendment to R.C. 4123.57(B), effective [52 Ohio St.3d 146] October 1, 1963, could not affect the substantive rights of claimants receiving awards for injuries occurring prior to that date. In that the amendment was held to apply prospectively only, that court held that any claim submitted to the commission would be governed by the statutory law in effect on the date of injury. Id. at 430, 32 O.O.2d at 550, 210 N.E.2d at 726.

Since Bednar's 1982 and 1983 injuries occurred well after the October 1, 1963 effective date of the amendment to R.C. 4123.57(B), his claims for the 1982 and 1983 injuries were governed by the law in effect on the date of those injuries. The referee thus believed that law removed none of Bednar's substantive rights to claims for injuries occurring before October 1, 1963.

After receiving briefs and holding a hearing, the court of appeals adopted the referee's recommendation and granted relator Sears's request for a writ of mandamus on September 13, 1988, ordering the commission to vacate its awards to Bednar of twelve percent permanent partial compensation and thirty percent permanent partial compensation for his 1982 and 1983 injuries, respectively.

The cause is now before this court upon an appeal by the Industrial Commission as of right.

Seeley, Savidge & Aussem and Thomas M. Carolin, Cleveland, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Donald R. Ford, Jr., Warren, and Cheryl J. Nester, Columbus, for appellant Industrial Com'n.

Victor H. Hahn, Cleveland, for appellant John Bednar.

Page 470

Stewart Jaffy & Associates Co., L.P.A., and Stewart R. Jaffy, Columbus, urging reversal, for amici curiae, Ohio Academy of Trial Lawyers, Ohio AFL-CIO, and United Autoworkers.

WRIGHT, Justice.

This case presents us with two questions. First, does R.C. 4123.57(B) require the Industrial Commission to aggregate all permanent partial disability awards, including those granted for injuries occurring prior to October 1, 1963, to determine when the one hundred percent permanent partial disability ceiling of R.C. 4123.57(B) has been reached? Second, is the statute unconstitutionally retroactive because it provides for aggregation of permanent partial compensation awards from injuries sustained before the 1963 amendment of R.C. 4123.57(B) with awards for injuries sustained after the 1963 amendment? We answer both questions in the affirmative. For the reasons that follow, we reverse the Court of Appeals for Franklin County, which issued a writ of mandamus ordering the commission to vacate its awards to Bednar for his 1982 and 1983 injuries, because " * * * when these awards are included with the other percentages of permanent disability awarded claimant, they exceed the one hundred percent limitation in violation of R.C. 4123.57(B)."

I

It is settled law that a relator has the burden of showing a clear legal right to a writ of mandamus as a remedy from a determination of the Industrial Commission. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631. See, also, State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus. It is also settled that mandamus will not lie where the record contains some evidence to support the commission's findings. State ex rel. Cassity v. Montgomery Cty. Dept. of Sanitation (1990), 49 Ohio St.3d 47, 48, 550 N.E.2d 474, 475, citing State [52 Ohio St.3d 147] ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 57-58, 29 OBR 438, 440, 505 N.E.2d 962, 964; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1372, 1374. Conversely, an abuse of discretion is present and mandamus will lie when there is no evidence upon which the commission could base its factual conclusions. Paragon, supra, at 74, 5 OBR at 128, 448 N.E.2d at 1374, citing State ex rel. Kramer v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42, 13 O.O.3d 30, 31, 391 N.E.2d 1015, 1017.

R.C. 4123.57 (entitled "Partial disability compensation") governs the schedule and number of weekly payments a claimant may receive for specified injuries arising out of and in the course of claimant's employment. Effective October 1, 1963, the General Assembly amended paragraph (B) of this section by adding the following language:

"No award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent." (Emphasis added.)

The first controversy of this case concerns the interpretation of this amendment. The commission, Bednar, and the amici curiae all urge this court to adopt the position that the amendment refers only to percentages of permanent disability resulting from injuries occurring after October 1, 1963, the amendment's effective date. Under this interpretation, Bednar's seventy-seven percent permanent partial compensation award received for the 1961 injury would not be aggregated with Bednar's other permanent partial compensation percentage awards. Since Bednar's awards would then total only fifty-eight percent, 3

Page 471

he would be eligible to receive the commission's twelve percent and thirty...

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14 practice notes
  • 573 N.E.2d 77 (Ohio 1991), 90-1331, Cline v. Ohio Bur. of Motor Vehicles
    • United States
    • Ohio Supreme Court of Ohio
    • July 10, 1991
    ...Jordano Elec. Co. (1990), 53 Ohio St.3d 66, 71, 558 N.E.2d 1173, 1177; State, ex rel. Sears, Roebuck & Co., v. Indus. Comm. (1990), 52 Ohio St.3d 144, 148, 556 N.E.2d 467, 471; Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 446, 254 N.E.......
  • 561 N.E.2d 927 (Ohio 1990), 88-2209, State ex rel. Ohio Funds Management Bd. v. Walker
    • United States
    • Ohio Supreme Court of Ohio
    • October 24, 1990
    ...is clearly not now before the court. Most recently, this occurred in State, ex rel. Sears, Roebuck & Co., v. Indus. Comm. (1990), 52 Ohio St.3d 144, 556 N.E.2d 467, rehearing denied, 55 Ohio St.3d 601, 561 N.E.2d 937. This trend is unfortunate. The parties (and the only parties) herein ......
  • Osborne v. Osborne, 082115 OHCA2, 26624
    • United States
    • Ohio Court of Appeals of Ohio
    • August 21, 2015
    ...only. In construing a statute, a court may not add or delete words. State ex rel. Sears, Roebuck & Co. v. Indus. Comm. (1990), 52 Ohio St.3d 144, 148; State v. Hughes (1999), 86 Ohio St.3d 424, 427. As CSEA points out, the aforementioned second sentence of R.C. 2301.35(G)(1) was origina......
  • Stalker v. Indus. Comm., 031104 OHCA10, 03AP788
    • United States
    • Ohio Court of Appeals of Ohio
    • March 11, 2004
    ...he received in excess of the 100 percent cap on awards. Id., quoting State ex rel. Sears Roebuck & Co. v. Indus. Comm. (1999), 52 Ohio St.3d 144, 152. In addressing the issue, the Eighth District noted that "[a]rguably, the operation and ultimate effect of this provision will be th......
  • Request a trial to view additional results
14 cases
  • 573 N.E.2d 77 (Ohio 1991), 90-1331, Cline v. Ohio Bur. of Motor Vehicles
    • United States
    • Ohio Supreme Court of Ohio
    • July 10, 1991
    ...Jordano Elec. Co. (1990), 53 Ohio St.3d 66, 71, 558 N.E.2d 1173, 1177; State, ex rel. Sears, Roebuck & Co., v. Indus. Comm. (1990), 52 Ohio St.3d 144, 148, 556 N.E.2d 467, 471; Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 446, 254 N.E.......
  • 561 N.E.2d 927 (Ohio 1990), 88-2209, State ex rel. Ohio Funds Management Bd. v. Walker
    • United States
    • Ohio Supreme Court of Ohio
    • October 24, 1990
    ...is clearly not now before the court. Most recently, this occurred in State, ex rel. Sears, Roebuck & Co., v. Indus. Comm. (1990), 52 Ohio St.3d 144, 556 N.E.2d 467, rehearing denied, 55 Ohio St.3d 601, 561 N.E.2d 937. This trend is unfortunate. The parties (and the only parties) herein ......
  • Osborne v. Osborne, 082115 OHCA2, 26624
    • United States
    • Ohio Court of Appeals of Ohio
    • August 21, 2015
    ...only. In construing a statute, a court may not add or delete words. State ex rel. Sears, Roebuck & Co. v. Indus. Comm. (1990), 52 Ohio St.3d 144, 148; State v. Hughes (1999), 86 Ohio St.3d 424, 427. As CSEA points out, the aforementioned second sentence of R.C. 2301.35(G)(1) was origina......
  • Stalker v. Indus. Comm., 031104 OHCA10, 03AP788
    • United States
    • Ohio Court of Appeals of Ohio
    • March 11, 2004
    ...he received in excess of the 100 percent cap on awards. Id., quoting State ex rel. Sears Roebuck & Co. v. Indus. Comm. (1999), 52 Ohio St.3d 144, 152. In addressing the issue, the Eighth District noted that "[a]rguably, the operation and ultimate effect of this provision will be th......
  • Request a trial to view additional results