Afrates v. Lorain

Decision Date19 February 1992
Docket NumberNo. 90-2328,90-2328
Citation584 N.E.2d 1175,63 Ohio St.3d 22
PartiesAFRATES, Appellee, v. CITY OF LORAIN et al., Appellants.
CourtOhio Supreme Court

SYLLABUS BY THE COURT

1. A (final) decision of the Industrial Commission involving a claimant's right to participate or to continue to participate in the State Insurance Fund must, if review is sought, be appealed pursuant to the terms of former R.C. 4123.519. The only decisions reviewable pursuant to R.C. 4123.519 are those decisions involving a claimant's right to participate or to continue to participate in th e fund. (Reeves v. Flowers [1971], 27 Ohio St.2d 40, 56 O.O.2d 22, 271 N.E.2d 769, Smith v. Krouse [1978], 54 Ohio St.2d 369, 8 O.O.3d 387, 377 N.E.2d 493, a nd Zavatsky v. Stringer [1978], 56 Ohio St.2d 386, 10 O.O.3d 503, 384 N.E.2d 69 3, followed. State, ex rel. O.M. Scott & Sons Co., v. Indus. Comm. [1986], 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d 1032, and Seabloom Roofing & Sheet Metal Co. v. Mayfield [1988], 35 Ohio St.3d 108, 519 N.E.2d 358, and their progeny a re overruled to the extent that they are inconsistent with this opinion.)

2. A decision of the Industrial Commission, finding that an employer, as required by R.C. 4123.522, did not have notice of an order of the Administrator of th e Bureau of Workers' Compensation, does not go to the basis of a claimant's right to participate or continue to participate in the fund and, thus, is not appealable under the provisions of former R.C. 4123.519.

3.An administrative decision that is final may be challenged by a writ of mandamus, where appropriate, or in an action for declaratory judgment.

On March 19, 1987, appellee, Kenneth Afrates, filed an application for benefits with appellant Administrator of the Bureau of Workers' Compensation ("administrator"). Afrates claimed he sustained injuries in the course of and arising out of his employment as a firefighter for appellant city of Lorain ("city").

In April 1987, the administrator allowed Afrates's claim. The April 1987 order allowing the claim was provisional, stating that any objection to the award must be presented to the Bureau of Workers' Compensation within ten days from receipt of the order. No objection to the award was filed with the bureau.

On November 12, 1987, the city, through its representative, filed a motion with appellant Industrial Commission ("commission") claiming that the city had not received, as required by R.C. 4123.522, notice of the administrator's April 1987 order. The city requested a hearing.

Following a hearing, the commission, on May 5, 1988, determined that the city had not received notice of the April 1987 order. The commission granted the city leave to file an objection to the award within the statutory period prescribed in R.C. 4123.522. The city filed an objection to Afrates's claim.

Afrates appealed the May 5, 1988 decision of the commission to the Court of Common Pleas of Lorain County. Afrates filed a complaint as required by R.C. 4123.519(C). In his amended complaint, Afrates took the position that the city had notice of the April 1987 order and had failed to object to the award in a timely manner.

The common pleas court granted summary judgment in favor of appellants. The court determined that the commission's May 5, 1988 decision was not a final appealable order, and that it (the court) did not have jurisdiction to hear Afrates's appeal.

The court of appeals reversed. Remanding the cause to the trial court, the court of appeals determined that R.C. Chapter 2505 was not applicable, and that the May 5, 1988 decision was appealable pursuant to R.C. 4123.519.

Finding its judgment to be in conflict with the judgment of the Court of Appeals for Tuscarawas County in Tristano v. Mark (Nov. 8, 1989), Tuscarawas App. No. 89AP30026, unreported, 1989 WL 137243, the court of appeals certified the record of the case to this court for review and final determination.

Shapiro, Kendis & Associates Co., L.P.A., Alan J. Shapiro and Eric P. Allen, Cleveland, for appellee.

Raymond J. Ewers, Lorain, for appellant city of Lorain.

Lee I. Fisher, Atty. Gen., and Diane J. Karpinski, Columbus, for appellants Administrator and Indus. Com'n.

DOUGLAS, Justice.

The question we are asked to decide is whether the commission's May 5, 1988 decision, finding that the city did not receive, as required by R.C. 4123.522, notice of the administrator's April 1987 order, is appealable under the provisions of R.C. 4123.519. For the reasons that follow, we hold that the May 5, 1988 decision of the commission was not appealable pursuant to the terms of R.C. 4123.519 and, accordingly, reverse the judgment of the court of appeals.

In part, R.C. 4123.519 (now renumbered 4123.519[A] ) provided:

"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 4121.35 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas * * *."

Afrates takes a very far-reaching view of R.C. 4123.519. Afrates contends that except for a decision concerning an "extent of disability" question, all decisions of the commission, including decisions made pursuant to the terms of R.C. 4123.522, are appealable to the common pleas court. In support of his position, Afrates relies primarily on State, ex rel. O.M. Scott & Sons Co., v. Indus. Comm. (1986), 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d 1032, and Seabloom Roofing & Sheet Metal Co. v. Mayfield (1988), 35 Ohio St.3d 108, 519 N.E.2d 358.

In Seabloom, a district hearing officer allowed the claimant's application for compensation for injuries he sustained while working on a reroofing project contracted by Seabloom Roofing & Sheet Metal Company. The company filed a motion with the commission, pursuant to R.C. 4123.522, to vacate the order on the basis that the company had not received notice of the allowance of claimant's application. While the company's motion was pending, the claimant took his own life. Ultimately, the commission denied the company's motion on the basis that the claimant's death abated the claim. The company sought review of the entire decision of the commission by filing an R.C. 4123.519 appeal.

On appeal to this court, the administrator argued, inter alia, that the commission's decision denying a motion for relief under R.C. 4123.522 was not a decision involving the right of the claimant to participate in the fund and, therefore, was not appealable through an R.C. 4123.519 appeal. In rejecting the administrator's argument, we adopted language from O.M. Scott & Sons, supra, that:

" ' * * * [A]ny order of the commission may be appealed to the court of common pleas by either party unless the order pertains to the extent of disability. * * *

" ' * * *

" ' * * * Obviously, the order sub judice does not go to the claimant's right to participate. This does not mean, however, that the order is not appealable to the common pleas court. A decision in an injury or occupational disease case which does not involve the right to participate is nevertheless appealable as long as it does not involve the extent of disability. * * * ' " (Emphasis sic.) Id., 35 Ohio St.3d at 110-111, 519 N.E.2d at 360-361.

Without question, language set forth in O.M. Scott & Sons, supra, and later adopted in Seabloom significantly broadened the scope of R.C. 4123.519. Prior to O.M. Scott & Sons, this court interpreted R.C. 4123.519 as permitting R.C. 4123.519 appeals only where the issue was a claimant's right to participate in the State Insurance Fund. See Reeves v. Flowers (1971), 27 Ohio St.2d 40, 56 O.O.2d 22, 271 N.E.2d 769; Smith v. Krouse (1978), 54 Ohio St.2d 369, 8 O.O.3d 387, 377 N.E.2d 493; and Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503, 384 N.E.2d 693. We now determine that the standard announced in O.M. Scott & Sons and followed in Seabloom and their progeny, 1 interpreting R.C. 4123.519, is too broad. We find that Reeves, Smith and Zavatsky properly construed R.C. 4123.519.

The purpose of R.C. 4123.519 is clear. The statute provides, in six separate places, that the issue presented by an R.C. 4123.519 appeal is the claimant's right to participate or continue to participate in the fund. For instance, the statute provides that it is the claimant who is required to file a petition " * * * showing a cause of action to participate or to continue to participate in the fund. * * * " There may be times when a dispute does not involve a claimant but, rather, the dispute lies between an employer and the commission. Such a situation may arise in a handicap reimbursement case 2 or when the issue is whether the costs of the claim should be charged to the state fund or to the self-insured employer. 3 It would make little sense for the claimant, who is not a party to the action and who may be receiving benefits, to file a petition. Further, R.C. 4123.519 provides that the court, or the jury if demanded," * * * shall determine the right of the claimant to participate in the fund upon the evidence adduced at the hearing of such action." (Emphasis added.) R.C. 4123.519 appeals are subject to de novo review. State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 484, 6 OBR 531, 534...

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