State ex rel. Able Temps., Inc. v. Indus. Comm.

• Citation: 607 N.E.2d 450,66 Ohio St.3d 22
• Decision Date: 24 February 1993
• Docket Number: No. 92-688,92-688
• Parties: The STATE ex rel. ABLE TEMPS, INC. et al. v. INDUSTRIAL COMMISSION OF OHIO et al.
• Court: United States State Supreme Court of Ohio

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66 Ohio St.3d 22 607 N.E.2d 450 The STATE ex rel. ABLE TEMPS, INC. et al.
v.
INDUSTRIAL COMMISSION OF OHIO et al. No. 92-688. Supreme Court of Ohio. Submitted Jan. 5, 1993.
Decided Feb. 24, 1993.

[607 N.E.2d 451] An employer's workers' compensation premium rates are based on a basic rate derived from the occupational classifications applicable to its employees. By resolution effective July 1, 1985, respondent Industrial Commission prohibited temporary help agencies ("THAs") from using the over two hundred classifications available to other employers. THAs were instead assigned nine broad classifications, which resulted, in many cases, in an unfavorable disparity between the rates assessed to THAs and those assessed to other employers with employees doing identical work.

On December 4, 1991, State ex rel. Minutemen, Inc. v. Indus. Comm. (1991), 62 Ohio St.3d 158, 580 N.E.2d 777, invalidated the separate THA classifications, finding that they were not based on "degree of hazard" as former R.C. 4123.29 (now 4123.29[A] ) required. Effective July 1, 1992, those classifications were officially eliminated. In this present class action, relators, all THAs, seek to compel reimbursement of any overpaid premiums.

Pickrel, Schaeffer & Ebeling, David C. Korte and Mary M. Biagioli, Dayton, for relators.

Lee I. Fisher, Atty. Gen., Gerald H. Waterman, Dennis L. Hufstader and Cordelia A. Glenn, Asst. Attys. Gen., for respondents.

PER CURIAM.

Preliminarily, two questions may be quickly resolved. First, relators' request to compel reclassification is moot, since reclassification occurred on July 1, 1992. Second, relators' request that this court declare the special THA classifications unconstitutional ignores our express refusal to address that issue in Minutemen, supra, 62 Ohio St.3d 158, 580 N.E.2d 777.

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For the reason expressed in Minutemen, the constitutional question does not merit examination in this case.

Disposition of these questions leaves one matter for determination--the period over which relators may be reimbursed. Relators urge repayment from July 1, 1985, citing R.C. 2305.07 and 2305.14. Respondents counter with Ohio Adm.Code 4121-7-17(C)'s two-year limitation. We agree with the latter.

R.C. Chapter 2305 governs timely commencement of civil actions. The timeliness of this action is not at issue. Ohio Adm.Code 4121-7-17(C), however, is directly on point:

"The Commission and Bureau shall * * * have the right to make adjustments as to * * * premium rates and/or amount of premium. No adjustments, however, shall be made in an employer's account which result in reducing the amount of premium below the amount of contributions made by the employer to the fund for the periods involved, except in reference to adjustments for the semi-annual and/or adjustment periods ending within twenty-four months immediately prior to the beginning of the current payroll reporting period, when such errors affecting the reports and the premium are brought to the attention of the Commission and Bureau by an employer through written application for adjustment or found by the Commission and Bureau."

Ohio Adm.Code 4121-7-17(C)'s applicability to premium reimbursement cases was recently reaffirmed in both State ex rel. Harry Wolsky Stair Builder, Inc. v. Indus. Comm. (1991), 58 Ohio St.3d 222, 569 N.E.2d 900, and State ex rel. Granville Volunteer Fire Dept., Inc. v. Indus. [607 N.E.2d 452] Comm....