State ex rel. B & C Machine Co. v. Indus. Comm.

• Court: Ohio Supreme Court
• Writing for the Court: DOUGLAS; MOYER; MOYER
• Citation: State ex rel. B & C Machine Co. v. Indus. Comm., 605 N.E.2d 372, 65 Ohio St.3d 538 (Ohio 1992)
• Decision Date: 30 December 1992
• Docket Number: No. 92-150,92-150
• Parties: The STATE EX REL. B & C MACHINE COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

Page 538

65 Ohio St.3d 538

605 N.E.2d 372

The STATE EX REL. B & C MACHINE COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 92-150.

Supreme Court of Ohio.

Submitted Oct. 20, 1992.

Decided Dec. 30, 1992.

In 1969, Elmer Holik was injured while in the course of and arising from his employment with appellant, B & C Machine Company. Following the allowance of his workers' compensation claim, Elmer applied for and was granted an additional forty percent award due to appellant's violation of a specific safety requirement.

In 1977, appellee Industrial Commission of Ohio ("commission") awarded Elmer "medical treatment for control of diabetes due to industrial injury of amputation left hand." Elmer died in 1978 of diabetes-related renal disease. On October 21, 1980, Elmer's widow, appellee Sylvia R. Holik, filed an application for death benefits. A district hearing officer granted the death claim in February 1981, finding that Elmer's death was a result of an injury sustained in his employment with appellant. The order, and thus the award, were administratively affirmed. However, the death benefits did not include the additional forty percent awarded to Elmer during his lifetime for violation, by appellant, of the specific safety requirement.

On October 7, 1986, Sylvia's counsel wrote to the commission, claiming that the additional forty percent award entitled Sylvia to an additional $86.40 per week in death benefits. Sylvia's counsel further claimed that Sylvia was due eight years of additional compensation amounting to $35,942.40. The commission construed the letter as a motion for further benefits and scheduled the matter for hearing.

A hearing was conducted on May 2, 1989, and, as a result, the commission denied Sylvia's request for increased benefits. The commission concluded that the additional forty percent award paid to Elmer during his lifetime abated at his death. The commission further concluded that Sylvia was not entitled to the additional award because she did not file for such compensation within two years of Elmer's death. The commission stated that its decision was based upon Indus. Comm. v. Davis (1933), 126 Ohio St. 593, 186 N.E. 505, and State ex rel. Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 4 O.O. 122, 198 N.E. 480.

On July 20, 1989, Sylvia requested that the commission rehear its prior order denying the additional benefits. The following day, Sylvia also appealed the commission's order, pursuant to R.C. 4123.519, to the Court of Common Pleas of Summit County. Subsequently, the commission vacated its prior order and, on January 17, 1990, granted the increased award, stating that:

"It is the finding and order of the Commission that is [sic ] retains jurisdiction over this claim in order to determine whether or not the order finding a violation of specific safety requirement dated July 28, 1973 was abated by reason of the claimant's death * * *. It is the finding of the Industrial Commission that the widow-claimant does have a vested right to continue to receive the additional award ordered by the Industrial Commission on July 28, 1973 and her right to receive such benefits survives the death of the decedent. * * * [O]nce a violation of specific safety requirement has been found by the Industrial Commission in the deceased-claimant's claim, it is unnecessary that the widow-claimant re-apply to the Industrial Commission for re-determining the existence or finding of a violation of specific safety requirement. Payment of the additional award to the widow-claimant * * * is to be made from October 26, 1978 to the present. The violation of the specific safety requirement award was July 28, 1973. 40% award shall attach to death benefits payable to the widow-claimant. This determination is made pursuant to Commission rule 4121-3-20(A) and Article 2, Section 35 of the Ohio Constitution. * * * "

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, challenging the commission's January 17, 1990 findings and order. The court of appeals found no abuse of discretion and denied the writ.

This matter is now before this court upon an appeal as of right.

Buckingham, Doolittle & Burroughs, Brett L. Miller, Columbus, and Eleanor J. Tschugunov, Akron, for appellant.

Lee I. Fisher, Atty. Gen. and Cordelia A. Glenn, Asst. Atty. Gen., for appellee Indus. Com'n.

Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J. Jaffy, Columbus; Pavick & Pavick and Michael J. Pavick, Akron, for appellee Holik.

DOUGLAS, Justice.

The underlying issue in this appeal is whether the commission had the authority to vacate and reconsider its 1989 order denying additional benefits to Sylvia Holik. For the reasons that follow, we find that the commission had such authority. We further hold that the commission's January 17, 1990 decision is in accordance with law.

As a threshold matter, we note that appellant essentially concedes that the Summit County Court of Common Pleas did not have subject-matter jurisdiction to address the merits of Sylvia's R.C. 4123.519 appeal but, nevertheless, contends, citing various cases, that the filing of the notice of appeal in the common pleas court by Sylvia divested the commission of jurisdiction to reconsider its 1989 order, rendering the commission's January 17, 1990 decision null and void. The court of appeals, in addressing appellant's contention, concluded that: " * * * [T]he filing of an appeal terminates the Industrial Commission's authority to reconsider its decision only when the decision is appealable to a court. In other words, the agency's authority to reconsider its decision is not terminated by an attempted appeal from a decision which as a matter of law is not appealable." We agree with the conclusion reached by the court of appeals.

Without question, specific-safety-requirement-violation determinations by the commission are not directly appealable to the court of common pleas. See Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175. Section 35, Article II of the Ohio Constitution vests exclusive and final jurisdiction in the commission, with respect to specific-safety-requirement violations, subject to correction in mandamus upon a showing of an abuse of discretion. State ex rel. Cincinnati Drum Service, Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135, 556 N.E.2d 459. Further, this court has determined that the filing of a R.C. 4123.519 appeal from a commission order which is not appealable is a "futile act." However, such a filing does not bar a suit in mandamus. See State ex rel. Dodson v. Indus. Comm. (1979), 58 Ohio St.2d 399, 401, 12 O.O.3d 345, 346, 390 N.E.2d 1189, 1190. Thus, in view of the foregoing, we believe that the notice of appeal filed by Sylvia should be treated as a nullity and, as such, the notice does not divest the commission of jurisdiction to reconsider its 1989 order. Moreover, it is clear that appellant's reliance on those cases which hold that the commission retains jurisdiction to reconsider a decision only until the time an appeal is filed, or the time for appeal has run, is misplaced.

Appellant also objects to the January 17, 1990 award of additional benefits to Sylvia on the basis that the commission did not have jurisdiction to award such benefits since Sylvia's 1986 request was not filed within two years of Elmer's death. However, we believe under the facts of this case the commission had the authority under R.C. 4123.52 to consider Sylvia's 1986 request and correct its clear mistake of law in originally denying the additional benefits.

Continuing jurisdiction is vested in the commission by R.C. 4123.52, which provides, in part, that:

"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." (Emphasis added.)

R.C. 4123.52 contains a broad grant of authority. However, we are aware that the commission's continuing jurisdiction is not unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 N.E.2d 487 (commission has inherent power to reconsider its order for a reasonable period of time absent statutory or administrative restrictions); State ex rel. Cuyahoga Hts. Bd. of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128, 388 N.E.2d 1383 (just cause for modification of a prior order includes new and changed conditions); State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149 (continuing jurisdiction exists when prior order is clearly a mistake of fact); State ex rel. Kilgore v. Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio Law Abs. 62, 174 N.E. 345 (commission has continuing jurisdiction in cases involving fraud); State ex rel. Manns v. Indus. Comm. (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an inferior tribunal is a sufficient reason to invoke continuing jurisdiction); and State ex rel. Saunders v. Metal Container Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170 (mistake must be "sufficient to invoke the continuing jurisdiction provisions of R.C. 4123.52"). Today, we expand the list set forth above and hold that the Industrial Commission has the authority pursuant to R.C. 4123.52 to modify a prior order that is clearly a mistake of law. In so holding, we note that the court of appeals ably recognized that: " * * * [W]here it is clear that this court would issue a writ of mandamus ordering the Industrial Commission to vacate, modify or change a decision or order, the respondent Industrial Commission neither exceeds its authority or jurisdiction nor acts unlawfully nor abuses its discretion if it proceeds to make such correction that this court would clearly have ordered without awaiting either an action being filed in this court or a decision from this court if one be...