L & K. Restaurants & Motels v. Industrial Commission of Ohio, and Nettie M. Garver,., 90-LW-0561
| Decision Date | 01 March 1990 |
| Docket Number | 90-LW-0561,89AP-68 |
| Parties | L & K RESTAURANTS & MOTELS, Relator, v. INDUSTRIAL COMMISSION OF OHIO, and Nettie M. Garver, Respondents. |
| Court | Ohio Court of Appeals |
In Mandamus on Objections to Referee's Report.
Vorys Sater, Seymour & Pease, Anne C. Griffin and Bradley K Sinnott, for relator.
Anthony J. Celebrezze, Jr. Attorney General, and Cheryl L. Nester, for respondent Industrial Commission of Ohio.
Relator, L & K Restaurants & Motels, has filed this original action requesting this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("respondent"), to vacate its order awarding permanent total disability compensation to respondent, Nettie M. Garver ("claimant"), and to conduct further proceedings in accordance with due process of law. The parties have stipulated the Industrial Commission claim file as evidence in this action.
The cause was referred to a referee pursuant to Civ.R. 53 and Section 13, Loc.R. 11 of the Tenth District Court of Appeals. The referee issued a report, including findings of fact and conclusions of law, recommending that this court issue a limited writ of mandamus ordering respondent to vacate its order and to conduct further proceedings in accordance with due process of law.
Respondent filed an objection to the report and the cause was submitted to this court. After an independent review of the report, evidence and arguments presented, we find that the referee found the salient facts and applied the applicable law. Hence, this court adopts the report, along with the following additional comments.
Respondent's objection states:
" * * * [T]he Respondent objects to the referee's finding that said Respondent abused its discretion and violated the Relator's due process rights with respect to the Commission's voting procedure in this case. * * * "
In support of this objection, respondent makes two arguments. First, respondent contends that it did not err by considering evidence obtained after the hearing was held on the application. Second, respondent maintains that it was not error for member McCarthy to vote on the application. McCarthy was not present at the hearing held on the matter.
As the referee's findings of fact show, claimant was injured in the course of and arising out of her employment as a housekeeper for relator. Claimant filed an application for benefits which was allowed for a lumbosacral strain and aggravation of pre-existing arthritis. On September 2, 1986, claimant filed an application for permanent total disability compensation. On June 9, 1987, claimant's application was heard before Industrial Commission members Lancaster, Huguelet, McAllister and Connor. Instead of deciding the case, respondent held the cause "in abeyance" pending an examination by Dr. Reynolds of all of the allowed conditions. Respondent's order indicated that, after Dr. Reynolds' report, it would act "without further hearing."
Claimant was examined by Dr. Reynolds on that same day. The report was subsequently filed with the commission. Copies of the report were sent to relator's representatives and the employer on July 13, 1987.
On September 17, 1987, acting without another hearing, the commission voted to grant claimant's application for permanent total disability compensation. Members Lancaster, Huguelet and McCarthy were the members voting to grant such compensation.
Respondent's order, mailed on October 2, 1987 (sections of which apparently were typed on different dates), states in pertinent part:
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